Webb v GetSwift Limited (No 2) [2018] FCA 994

Webb v GetSwift Limited (No 2) [2018] FCA 994

The restraint was appropriate and necessary under s 33ZF to ensure justice was done in the Webb representative proceeding because the integrity of the Court-supervised opt out process required group members to receive Court-approved, complete and non-conflicted information before deciding whether to opt out. Squire Patton Boggs had been involved in promoting a stayed proceeding and might have, or reasonably be apprehended to have, a commercial interest in maximising opt outs; unrestricted communications by it about opt out would risk undermining the statutory process. Procedural fairness was afforded to Squire Patton Boggs, and its objections as to power, jurisdiction, appropriateness and...

Jurisdiction
Australia
Judgment Date
25 June 2018
Procedural Posture
Representative Proceeding Under Pt IVA of the Federal Court of Australia Act 1976 (cth) and Related Proceeding / Interlocutory Application and Originating Application Concerning Restraint on Communications With Group Members About Opt Out
Outcome
In NSD 580 of 2018, restraint orders were made against Squire Patton Boggs and indemnity costs were ordered on the interlocutory application. In NSD 1112 of 2018, costs were reserved and the proceeding was otherwise dismissed.
Legal Topics
['opt Out Process' 'court Approved Notice to Group Members' 'section 33 ZF Power' 'restraint on Communications With Group Members' 'integrity of Court Process' 'costs']
['representative Proceedings' 'federal Court Procedure' 'commercial and Corporations'] ['opt Out Process' 'court Approved Notice to Group Members' 'section 33 ZF Power' 'restraint on Communications With Group Members' 'integrity of Court Process' 'costs']

Case Brief

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Procedural Posture

Representative Proceeding Under Pt IVA of the Federal Court of Australia Act 1976 (cth) and Related Proceeding / Interlocutory Application and Originating Application Concerning Restraint on Communications With Group Members About Opt Out

Legal Issues

  1. 1 ['Whether Squire Patton Boggs should be restrained from communicating with group members solely about whether they should exercise their right to opt out of the Webb proceeding pursuant to s 33J of the Federal Court of Australia Act 1976 (Cth).' 'Whether the Court had power under s 33ZF of the Federal Court of Australia Act 1976 (Cth) to make an order restraining a non-party solicitor in the Webb proceeding.' 'Whether relief could or should alternatively be granted in the new proceeding commenced against Squire Patton Boggs.' 'Whether the balance of convenience and the undertaking as to damages supported the restraint.' 'Whether the restraint was inappropriate because Squire Patton Boggs asserted it might need to advise Perera funded group members about possible exposure to funding fees.']

Ratio Decidendi

The restraint was appropriate and necessary under s 33ZF to ensure justice was done in the Webb representative proceeding because the integrity of the Court-supervised opt out process required group members to receive Court-approved, complete and non-conflicted information before deciding whether to opt out. Squire Patton Boggs had been involved in promoting a stayed proceeding and might have, or reasonably be apprehended to have, a commercial interest in maximising opt outs; unrestricted communications by it about opt out would risk undermining the statutory process. Procedural fairness was afforded to Squire Patton Boggs, and its objections as to power, jurisdiction, appropriateness and...

Court Disposition

In NSD 580 of 2018, restraint orders were made against Squire Patton Boggs and indemnity costs were ordered on the interlocutory application. In NSD 1112 of 2018, costs were reserved and the proceeding was otherwise dismissed.

Orders

  • ['In NSD 580 of 2018, pursuant to s 33ZF of the Federal Court of Australia Act 1976 (Cth), Squire Patton Boggs and its officers, servants and agents were restrained from communicating with group members in the proceeding, other than Mr Dwayne Cavan Shanahan Perera, solely in relation to whether group members should...