3.68: Court options to deal with significant deficiencies
7.3: Summary Judgment (Application and decision)

Case Summary

Prior to certification in a proposed Class Action, the Defendants brought an Application for Summary Judgment against the Plaintiffs. Master Schlosser considered whether a Master had the jurisdiction to hear a Summary Judgment Application in an Action intended to be certified as a Class Action. In considering jurisdiction, Master Schlosser stated:

In this case there is no certification order and there has been no certification application. Until it is certified, a proceeding commenced as a Class Action does little else other than suspend the limitation period for the cause of action asserted in the proceeding (section 40). Until a proceeding is certified as a Class Action, there is nothing special about it and all of the other procedural rules prevail. The Act provides (section 41) that the Rules of Court apply unless they are inconsistent with a provision of the Act. There is no express inconsistency with hearing a Rule 7.3 or 3.68 application first. ... There is no reason a Master cannot hear a Summary Dismissal application prior to certification.

Master Schlosser held that it was appropriate that the Summary Judgment Application be heard and determined on its merits, prior to certification, and that a Master had jurisdiction. Master Schlosser further stated that, in deciding the merits of the Application, the Court did not have to “engage in an investigation into possible worlds which might contain class members whose claims might not be proscribed”. Only the facts of the two Plaintiffs were relevant. The Application was granted, because the Claims were started out of time, and the Action was dismissed.

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