Rachael Mulheron talks to us about her new book published by Cambridge University Press
The opt-out class action is a procedural device whereby a group of people – numbering tens, hundreds, thousands, even millions – may sue a defendant against whom their grievances share a common issue of fact or of law. The class members do not have to come forward individually. Their collective claim is advanced, on their behalf, by a named representative claimant; and they may generally remain ‘in the background’ while the common issues are being litigated to judgment or to settlement. Class actions are a powerful tool which can have the effect of ‘levelling the playing field’ between litigants.
How extraordinary, then, where Parliament legislates to introduce a class action, under which the government itself can be sued as defendant! Indeed, that very scenario of large-value lawsuits being instituted against government entities, executive agencies, or Crown corporations, has occurred frequently in several jurisdictions with longstanding class actions regimes. Without such legislation, many litigants simply would not have the resources, individually, to test their grievances against such a well-resourced and knowledgeable defendant.
However, it is apparent that, in those jurisdictions in which class actions have achieved a firm hold, government has featured heavily as a ‘player’ in capacities other than as defendant. Many contentious issues have surrounded that multi-layered interplay between government and class actions. A dedicated study of these conundrums, from a comparative perspective, is the subject of this book. The aim is to learn lessons from elsewhere, and hence, to recommend ‘best practice’ legislative drafting and practice.
The interplay between the class action and government has not been much written upon in class actions scholarship to date. It was the purpose of this book to seek to fill that niche.
The book arose out of a confluence of my teaching, research, and law reform work in the class actions area. For example, I was intrigued by the decisions of Canadian, United States, and Australian legislatures to implement class actions some decades ago, when it may not have been quite as apparent that a great variety and number of suits against governments would eventuate under those regimes. But they did! And it is hypothesised that this has had something of a ‘chilling effect’ upon procedural reform in some other jurisdictions.
Furthermore, the very willingness to enact such legislation is oft-said to depend upon ‘evidence of need’, to which any law reformer will grimly smile at the notion of ‘proving a negative’, and will bite back the riposte that the voice in the cornfield who told Kevin Costner’s character in Field of Dreams (1989), ‘[i]f you build it, they will come’, is one worth listening to.
That metaphor is carried forth throughout this book. Path I prepares a path to the stadium. It examines government (in its various guises) as class actions enabler (i.e., legislator); as class actions designer (i.e., what the regime says); as funder (where government may choose to legislate for assisted funding of class actions litigation); and as potential ‘gate-keeper’ regarding cross-border class actions. Part II then considers government as a player in the match. It considers the bases upon which government (in its various guises) can serve as the representative claimant, or constitute a class member, or wind up as the defendant; and whether financial windfalls to governments (from, say, unclaimed residual damages funds) should ever be countenanced from class actions. The study of governmental interplay in class actions jurisprudence makes for a fascinating study!
Extracted from: Chapter 10, ‘Levelling the Playing Field’, pp 365-67:
Many claims stand out from amongst the plethora of cases which have been considered in this book. Two are particularly worthy of mention.
In 1909, Kingsley Fairbridge founded a society at the University of Oxford, in order to promote the emigration of children from Great Britain to its colonies. He envisioned that schools would be established in rural communities in some of these colonies, so that children who were living in poor and unhealthy conditions in Great Britain could be sent to these schools, and thereby have an opportunity to be raised, to be educated, and to learn a variety of skills, in a much better and healthier environment. For that purpose, a farm and a school were established at Molong in New South Wales, Australia, called the Fairbridge Farm, and which continued to operate until 1974. Just over a century after the Fairbridge Society was created in Oxford, a class action was instituted against the Commonwealth of Australia and the State of New South Wales,[1] in which Geraldine Giles and Vivian Drady alleged that, during much of the time at the Fairbridge Farm, children were subjected to systemic physical and sexual abuse perpetrated by a significant number of staff and others. It was claimed, on behalf of former child residents, that those government defendants should be legally liable in damages to the children who had suffered from such abuse, and for the harm sustained, both physical and psychological. The class action ultimately settled for $24 million.[2]
Half a world away, Marc Leroux, who resided in Timmins, Ontario, was father to Briana, who was diagnosed with a rare brain disorder when she was aged two. Throughout her life, Briana remained non-verbal, functioned at the level of a three-year-old; and required constant care in relation to activities such as eating, mobility, and personal hygiene. Her father relied upon financial support and social services provided by the Ontario provincial government. He brought an action[3] against the province of Ontario on behalf of all acutely disabled persons who had turned 18, and who had thereafter been approved by government to receive support and services. It was alleged that these disabled persons had then been relegated by the relevant provincial Ministry to indeterminate waiting lists, inconsistent prioritisation processes for the waitlisted services, and poor matching programmes. All of this, said Mr Leroux, had pushed his family life, and those of other class members, to ‘the brink of disaster’ and to ‘breaking point’, in seeking to provide disabled loved ones with care, often whilst also holding down employment. Mr Leroux believed that his experiences with the provincial Ministry were common to thousands of Ontario families, and sought damages (including punitive damages) against the province of Ontario. At the time of writing, the class action has been certified.
Both scenarios are poignant. Indeed, the vulnerability and other characteristics of the class members may have particularly suited these cases to the opt-out class action, to preclude the need for all class members to come forward at the outset. However, perhaps the most remarkable aspect of these two cases is that they could be brought at all. In both New South Wales and Ontario, at some point distantly earlier, a vote was taken by their respective Parliaments to permit opt-out class actions, without restricting the ambit of possible defendants, and without taking any measures to protect government from such suits. Those decisions were taken with a full and complete awareness that government could become a litigation ‘target’. Where activities by a government could be alleged to have been deleterious to a sector of society, to a group of people, or to a cluster of businesses, and across a generic range of grievances and causes of action, then the respective Parliaments accepted that the procedural vehicle of the class action could be taken for a lengthy and expensive ride, in order to seek compensatory redress against that particular defendant. For any jurisdiction - such as that of the United Kingdom - where that possibility is not a reality, the courageous and far-sighted decisions made by those lawmakers from the Comparator Jurisdictions cannot be overstated. Opt-out class actions have levelled the playing field, and have served as a vehicle by which claimants such as Mr Leroux and Ms Giles may at least have the opportunity to test the legitimacy and strength of their claims against a well-resourced and powerful defendant.
Of course, there are constant concerns as to how the opt-out class action vehicle is operating, as very recent reports by law reform bodies in Australia (federally, and in Victoria), and in Ontario, demonstrate. Rule changes to FRCP 23 in 2018 also highlight the continuous ‘review-in-motion’ to which class action procedure is rightly subject. However, in these jurisdictions, the question has moved from ‘whether to implement’ to ‘how to improve’. It a question of an entirely different order in other jurisdictions, where the absence of an opt-out generic class action makes the commencement of the type of suits brought by Ms Giles and Mr Leroux a much more difficult proposition, procedurally-speaking.
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[1] Giles v Cth of Australia [2014] NSWSC 83.
[2] See the statement by the class lawyers, Slater and Gordon: ‘[t]he settlement established a $24 million fund to compensate those victims of child abuse at the Fairbridge Farm School in Molong who registered in accordance with the Court's orders. That registration period has since closed and the distribution of the compensation fund has been completed’: available at: https://www.slatergordon.com.au/class-actions/past-class-actions/fairbridge-farm-school
[3] Leroux v Ontario [2018] ONSC 6452 (judgment dated 14 Dec 2018, Belobaba J).