Asirifi-Otchere v Swann Insurance (Aust) Pty Ltd (No 2) [2020] FCA 1355

Asirifi-Otchere v Swann Insurance (Aust) Pty Ltd (No 2) [2020] FCA 1355

The Court has power under s 33Q(1) to determine common questions relating to the claims of both the applicant and group members who purchased different products without appointing sub-group representative parties, and may appoint sample group members for determination of issues common to their claims. Proposed common questions concerning all six AOIPs will be determined at the initial trial, with additional sample group members appointed as appropriate.

Parties
Applicant: Jones Asirifi-Otchere; First Respondent: Swann Insurance (Aust) Pty Ltd; Second Respondent: Insurance Australia Limited
Jurisdiction
Australia
Judgment Date
25 September 2020
Procedural Posture
Representative Proceedings (part Iva) / Interlocutory Application/orders Addressing Common Questions and Sample Group Members
Outcome
Application granted in substantial part; orders made identifying matters to be determined at initial trial, appointment of sample group members, and costs to applicant.
Legal Topics
Representative Proceedings, Common Questions, Sub Group Representative Parties, Add on Insurance Products, Misleading or Deceptive Conduct, Unconscionable Conduct
Practice and Procedure Commercial Law Consumer Protection Representative Proceedings Common Questions Sub Group Representative Parties Add on Insurance Products Misleading or Deceptive Conduct +1 more

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Parties

Jones Asirifi-Otchere

Applicant

Swann Insurance (Aust) Pty Ltd

First Respondent

Insurance Australia Limited

Second Respondent

Procedural Posture

Representative Proceedings (part Iva) / Interlocutory Application/orders Addressing Common Questions and Sample Group Members

Legal Issues

  1. 1 Whether common questions relating to insurance products not purchased by the applicant may be determined without sub-group representatives
  2. 2 Whether appointment of sample group members is permissible under Part IVA of the Federal Court of Australia Act 1976 (Cth)
  3. 3 Appropriateness of certain common questions given individual circumstances of group members

Ratio Decidendi

The Court has power under s 33Q(1) to determine common questions relating to the claims of both the applicant and group members who purchased different products without appointing sub-group representative parties, and may appoint sample group members for determination of issues common to their claims. Proposed common questions concerning all six AOIPs will be determined at the initial trial, with additional sample group members appointed as appropriate.

Court Disposition

Application granted in substantial part; orders made identifying matters to be determined at initial trial, appointment of sample group members, and costs to applicant.

Orders

  • The initial trial will determine the whole claim of the applicant, the whole claim of sample group members, and questions common to applicant and group members as per Annexure A.
  • Lindi Glick, Amanda Melvin and Leanne Rea appointed as sample group members.