Haselhurst v Toyota Motor Corporation Australia Ltd t/as Toyota Australia; Whisson v Subaru (Aust) Pty Ltd; Kularathne v Honda Australia Pty Ltd; Brewster v BMW Australia Ltd; Bond v Nissan Motor Co (Australia) Pty Ltd; Coates v Mazda Australia Pty Ltd; Dwyer v Volkswagen Group Australia Pty Ltd t/as Volkswagen Australia [2020] NSWCA 66

Haselhurst v Toyota Motor Corporation Australia Ltd t/as Toyota Australia; Whisson v Subaru (Aust) Pty Ltd; Kularathne v Honda Australia Pty Ltd; Brewster v BMW Australia Ltd; Bond v Nissan Motor Co (Australia) Pty Ltd; Coates v Mazda Australia Pty Ltd; Dwyer v Volkswagen Group Australia Pty Ltd t/as Volkswagen Australia [2020] NSWCA 66

Order 16, which would extinguish unregistered group members' rights prior to settlement approval, was beyond the power conferred by s 183 of the Civil Procedure Act 2005 (NSW); the section does not permit such a pre-settlement class closure. If the Court had power, the primary judge's discretion miscarried because relevant considerations, including the interests of all group members and evidentiary support for the effectiveness of mediation, were not properly addressed.

Jurisdiction
Australia
Judgment Date
22 April 2020
Procedural Posture
Representative Class Action / Appeal From Interlocutory Order
Outcome
Appeal allowed
Legal Topics
['representative Proceedings' 'class Actions' 'class Closure Orders' 'opt Out Rights' 'settlement Approval']
['civil Procedure'] ['representative Proceedings' 'class Actions' 'class Closure Orders' 'opt Out Rights' 'settlement Approval']

Case Brief

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Procedural Posture

Representative Class Action / Appeal From Interlocutory Order

Legal Issues

  1. 1 ["Whether the Supreme Court of New South Wales has power under s 183 of the Civil Procedure Act 2005 (NSW) to make a pre-settlement class closure order extinguishing unregistered group members' rights" 'Whether the discretion to make such an order miscarried']

Ratio Decidendi

Order 16, which would extinguish unregistered group members' rights prior to settlement approval, was beyond the power conferred by s 183 of the Civil Procedure Act 2005 (NSW); the section does not permit such a pre-settlement class closure. If the Court had power, the primary judge's discretion miscarried because relevant considerations, including the interests of all group members and evidentiary support for the effectiveness of mediation, were not properly addressed.

Court Disposition

Appeal allowed

Orders

  • ['Leave to appeal granted in matters 2017/00340824; 2017/00378526; 2017/00353017; 2018/00009555; 2018/00009565; 2018/00042244 and 2018/00322648.' 'Order 16 set aside in these proceedings.' 'Matters remitted to the Equity Division.' 'Respondents to pay the costs of the appellants.']