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This is a class action against the Secretary for the NSW Ministry of Health and the State of New South Wales on behalf of junior medical officers to recover unpaid employment entitlements, including unpaid overtime, break and superannuation entitlements.

In this judgment, Garling J dismissed the defendants’ motion to declass the proceeding pursuant to s 166(1) of the Civil Procedure Act 2005 (NSW) (CPA) and ordered the defendants to pay the plaintiff’s costs of the motion.

His Honour observed that the proceeding raises a number of substantial questions of fact or law which are likely common to the claims of class members, including the proper interpretation of the overarching legislative provisions, Industrial Awards and Department of Health Policy Directives covering the disputed areas in respect of which claims for payment have been made.

Further, and notwithstanding there may have been many individual circumstances as to how class members were treated, his Honour was satisfied that a single determination of those common questions will be the most efficient way of resolving them. Indeed, his Honour observed that if thousands of individual claims were brought in the Local Court, there would be a real risk of conflicting decisions, the plaintiffs would incur millions of dollars in filing fees, and there would be a significant intrusion on the resources of the State. By contrast, the provisions of Pt 10 of the CPA provide the Court with “a flexible and highly efficient method of determining a large number of claims which have a relatively low value” (at [29]).

Further, in a representative proceeding, there is a single set of lawyers for the plaintiff and class members, and a single set of lawyers for the defendants. Were the proceeding to be declassed, there would likely be many different lawyers acting for individual plaintiffs, which would likely result in legal fees being significantly higher if claims were made individually.

His Honour noted that there may come a time (assuming the plaintiff’s claims are established at trial) when it becomes necessary for there to be individual assessments of the claims of class members. However, this could be addressed by the Court referring out assessments to expert panels or referees; making an aggregate damages award; addressing the claims of individual class members in sub-groups; or declassing the proceeding. However, his Honour concluded that the defendants’ application was premature and that, for the reasons outlined above, it was in the interests of justice for the matter to proceed as a representative proceeding. As such, his Honour dismissed the defendants’ motion and made a costs order in favour of the plaintiff.

Fakhouri v NSW Ministry of Health [2023] NSWSC 808 

Supreme Court of New South Wales, Garling J,
27 June 2023

Plaintiff’s Solicitors: Maurice Blackburn
Defendants’ Solicitors: Minter Ellison
Plaintiff’s Funder: N/A

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