Moore v Scenic Tours Pty Ltd (No.5) [2023] NSWSC 392

Moore v Scenic Tours Pty Ltd (No.5) [2023] NSWSC 392

Because the parties largely agreed that remaining group member damages claims should be assessed by referees, and because the claims were numerous, relatively small individually but potentially significant in aggregate, the preferable course was to appoint referees under rr 20.14 and 20.15 of the Uniform Civil Procedure Rules 2005 (NSW). The defendant should not be required to obtain leave before issuing subpoenas, as subpoena costs would likely fall on it and moderation could be expected. Cross-examination of individual claimants should be permitted, subject to the referee's power to limit its length and topic, as that was the more efficient procedure.

Jurisdiction
Australia
Judgment Date
26 April 2023
Procedural Posture
Representative Proceedings; Civil Procedure Notice of Motion Concerning Referral to Referees for Assessment of Remaining Damages Claims / Procedural Ruling on Notice of Motion Filed 9 September 2022
Outcome
Orders for referral to referees made; defendant not required to obtain leave to issue subpoenas; defendant permitted to cross-examine individual claimants subject to referee-imposed limits.
Legal Topics
['reference to Referees' 'assessment of Damages' 'subpoenas' 'cross Examination' 'group Member Claims']
['civil Procedure' 'representative Proceedings' 'alternative Dispute Resolution'] ['reference to Referees' 'assessment of Damages' 'subpoenas' 'cross Examination' 'group Member Claims']

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Procedural Posture

Representative Proceedings; Civil Procedure Notice of Motion Concerning Referral to Referees for Assessment of Remaining Damages Claims / Procedural Ruling on Notice of Motion Filed 9 September 2022

Legal Issues

  1. 1 ['What methodology and procedure should be implemented to assess damages for between 850 and 950 remaining group member claims.' 'Whether the defendant should be required to obtain leave from the relevant referee before issuing subpoenas.' 'Whether the defendant should be able to cross-examine any individual claimant without first satisfying the referee that cross-examination would be helpful.' 'Whether referees should defer preparations until delivery of the Court of Appeal judgment, an issue that became moot after Scenic Tours Pty Ltd v Moore [2023] NSWCA 74 was delivered.']

Ratio Decidendi

Because the parties largely agreed that remaining group member damages claims should be assessed by referees, and because the claims were numerous, relatively small individually but potentially significant in aggregate, the preferable course was to appoint referees under rr 20.14 and 20.15 of the Uniform Civil Procedure Rules 2005 (NSW). The defendant should not be required to obtain leave before issuing subpoenas, as subpoena costs would likely fall on it and moderation could be expected. Cross-examination of individual claimants should be permitted, subject to the referee's power to limit its length and topic, as that was the more efficient procedure.

Court Disposition

Orders for referral to referees made; defendant not required to obtain leave to issue subpoenas; defendant permitted to cross-examine individual claimants subject to referee-imposed limits.

Orders

  • ['Order pursuant to rr 20.14 and 20.15 of the Uniform Civil Procedure Rules 2005 (NSW) that Sylvia Emmett AM, Michael Cranitch SC, Simon Kalfas SC, Larry King SC and Anthony Lo Surdo SC be appointed as referees, with Sylvia Emmett AM to act as senior referee, to conduct an inquiry and prepare a report to the Court...