Junior doctors class action allowed to proceed as representative action

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In this case, the court was asked to deliberate whether representative proceedings under the Civil Procedure Act 2005 (NSW) can be commenced as a class action when the entitlements are conferred under the Industrial Relations Act 1996 (NSW).  

This decision concerns a class action against the Secretary for the New South Wales Ministry of Health seeking the recovery of amounts said to be owing to junior doctors for overtime and meal breaks. The question before Beech-Jones CJ was whether representative proceedings under Part 10 of the Civil Procedure Act 2005 (NSW) (CPA) can be commenced and maintained on behalf of class members seeking the recovery of entitlements conferred by an award made under the Industrial Relations Act 1996 (NSW) (IRA).

His Honour made two principal findings:

• a) First, an application “under” Part 2 of Chapter 7 of the IRA cannot be commenced or maintained on behalf of class members. This is because an application under Part 2 of Chapter 7 of the IRA is incompatible with representative proceedings under Part 10 of the CPA. His Honour thought that this incompatibility was best illustrated by provisions concerning settlement – settlements under s 173 of the CPA require court approval, while settlements under s 371 of the IRA do not. His Honour opined that these inconsistencies should be resolved by treating Part 2 of Chapter 7 of the IRA as establishing the “detailed regime for regulating a particular matter” (at [45]).

• b) Second, notwithstanding the above finding, proceedings under Part 10 of the CPA can be commenced and maintained seeking relief in respect of any statutory debt that arises in favour of class members in respect of their award entitlements. An action for recovery of a statutory debt is not an application “under” Part 2 of Chapter 7 of the IRA. His Honour observed (at [46]):

  … each group member, being a person entitled to apply under s 369(1)(a) of the IRA, would, via a proceeding under Part 10 of the CPA commenced on their behalf, be “recovering the money [owed to them] as a debt in [a] court of competent jurisdiction”, namely this Court.

The practical consequence of his Honour’s conclusions was that the proceedings will continue as representative proceedings. 

Fakhouri v The Secretary for the NSW Ministry of Health [2022] NSWSC 233

Supreme Court of New South Wales, Beech-Jones CJ at CL,
9 March 2022

Plaintiff’s Solicitors: Maurice Blackburn Lawyers;  
Defendant’s Solicitors: Minter Ellison;
Plaintiff’s Funder: N/A

Austlii Link: Available here

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