Lenthall v Westpac Banking Corporation (No 2) [2020] FCA 423

Lenthall v Westpac Banking Corporation (No 2) [2020] FCA 423

The Court held it has clear statutory power (ss 33X(1)(a), 33Y(2), and 33X(5) of the Federal Court of Australia Act) to approve a notice to group members in a class action apprising them of the termination of the common fund order, the reality of the present funding arrangements, and the applicants' intention to seek an Expense Sharing Order at the conclusion of the proceeding. The High Court's decision in Brewster does not preclude approval of such a notice. The content of the notice must accurately and neutrally convey the conditionality of funding and the potential impact on rights, to ensure group members are informed sufficiently to exercise their right to opt out.

Jurisdiction
Australia
Judgment Date
02 April 2020
Procedural Posture
Representative Proceeding (class Action) / Interlocutory Determination Regarding Class Member Notice and Subsequent Case Management Hearing
Outcome
Orders made for further case management hearing to finalise the form of notice to group members; parties to provide proposed dates for that hearing.
Legal Topics
['representative Proceedings' 'common Fund Orders' 'expense Sharing' 'opt Out Rights' 'court Approved Notice' 'case Management']
['civil Procedure' 'class Actions'] ['representative Proceedings' 'common Fund Orders' 'expense Sharing' 'opt Out Rights' 'court Approved Notice' 'case Management']

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Procedural Posture

Representative Proceeding (class Action) / Interlocutory Determination Regarding Class Member Notice and Subsequent Case Management Hearing

Legal Issues

  1. 1 ["Whether the Court has power to approve a notice to group members foreshadowing an application for an 'Expense Sharing Order' at the conclusion of the proceeding; whether recent High Court authority (Brewster) precludes the Court approving the issue of such a notice; whether the content of the notice ought to be approved, having regard to the complexity of conveying such information and the underlying funding arrangements."]

Ratio Decidendi

The Court held it has clear statutory power (ss 33X(1)(a), 33Y(2), and 33X(5) of the Federal Court of Australia Act) to approve a notice to group members in a class action apprising them of the termination of the common fund order, the reality of the present funding arrangements, and the applicants' intention to seek an Expense Sharing Order at the conclusion of the proceeding. The High Court's decision in Brewster does not preclude approval of such a notice. The content of the notice must accurately and neutrally convey the conditionality of funding and the potential impact on rights, to ensure group members are informed sufficiently to exercise their right to opt out.

Court Disposition

Orders made for further case management hearing to finalise the form of notice to group members; parties to provide proposed dates for that hearing.

Orders

  • ['The matter be listed for a further case management hearing on a date to be fixed for the purposes of hearing any further submissions concerning the form of the notice, which comprises the annexure to the reasons of judgment dated 2 April 2020 and related matters.' 'The solicitors for the parties are directed to...