Asirifi-Otchere v Swann Insurance (Aust) Pty Ltd (No 4) [2021] FCA 459

Asirifi-Otchere v Swann Insurance (Aust) Pty Ltd (No 4) [2021] FCA 459

Under the Federal statutory regime, following approval of a settlement and the making of an order under s 33ZB of the Federal Court of Australia Act 1976 (Cth), the Court has no power to permit group members to opt out late, whether by reference to s 33ZF or by use of the slip rule under Federal Court Rules 2011 (Cth) r 39.05, as such orders bind all group members except those who have opted out, and finality and certainty for all parties is essential. The absence of a power analogous to s 33KA of the Supreme Court Act 1986 (Vic) confirms this position. Where the relevant discretionary decision at settlement approval was made on the basis of available information, and it cannot be said...

Jurisdiction
Australia
Judgment Date
23 April 2021
Procedural Posture
Representative Proceeding (class Action) / Post Settlement, Application for Late Opt Out
Outcome
Applications for late opt out dismissed
Legal Topics
['representative Proceedings' 'settlement Approval' 'opt Out Procedure' 'slip Rule' 'finality of Settlement']
['civil Procedure' 'class Actions' 'consumer Law'] ['representative Proceedings' 'settlement Approval' 'opt Out Procedure' 'slip Rule' 'finality of Settlement']

Case Brief

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Procedural Posture

Representative Proceeding (class Action) / Post Settlement, Application for Late Opt Out

Legal Issues

  1. 1 ['Whether the Court has power to allow late opt out by group members after the approval of a class action settlement under Pt IVA of the Federal Court of Australia Act 1976 (Cth) and section 33ZB orders have been made;' 'Whether the slip rule (Federal Court Rules 2011 (Cth) r 39.05) permits correction of orders to allow opt out where group member lodged notice after the opt out date but before settlement approval;' 'Interaction between sections 33ZF, 33ZB of the Federal Court of Australia Act 1976 (Cth) and section 33KA of the Supreme Court Act 1986 (Vic) regarding powers to remove group members post-judgment.']

Ratio Decidendi

Under the Federal statutory regime, following approval of a settlement and the making of an order under s 33ZB of the Federal Court of Australia Act 1976 (Cth), the Court has no power to permit group members to opt out late, whether by reference to s 33ZF or by use of the slip rule under Federal Court Rules 2011 (Cth) r 39.05, as such orders bind all group members except those who have opted out, and finality and certainty for all parties is essential. The absence of a power analogous to s 33KA of the Supreme Court Act 1986 (Vic) confirms this position. Where the relevant discretionary decision at settlement approval was made on the basis of available information, and it cannot be said...

Court Disposition

Applications for late opt out dismissed

Orders

  • ['The applications for late opt out be dismissed.']