COOPER v ANZ BANK NEW ZEALAND LTD [2013] NZHC 3116

COOPER v ANZ BANK NEW ZEALAND LTD [2013] NZHC 3116 [25 November 2013]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2013-404-3247[2013] NZHC 3116BETWEEN SANDRA NORMA COOPERFirst Representative PlaintiffAND CRAIG RICHARD JONESSecond Representative PlaintiffAND IVOR MARQUISE DE MENEFYThird Representative PlaintiffAND INK NZ LIMITEDFourth Representative PlaintiffAND ANZ BANK NEW ZEALAND LIMITEDDefendantHearing: 22 November 2013Appearances: B D Gray QC and S D Williams for PlaintiffsA R Galbraith QC, R G Simpson and S V A East for DefendantJudgment: 25 November 2013JUDGMENT OF PETERS JThis judgment was delivered by Justice Peters on 25 November 2013 at 4.30 pmpursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate: ...................................Solicitors: Bell Gully, AucklandCounsel: B D Gray QC, AucklandS D Williams, AucklandA R Galbraith QC, AucklandIntroduction[1] This judgment is in respect of the Plaintiffs' application dated 18 November 2013 ("application") seeking orders:1(a) varying the order specified in [55] of the judgment of Peters J dated 25 October 2013 ([2013] NZHC 2827) to 1 March 2014;(b) approving an opt in notice to potential class members in the form attached to this application; and(c) directing that the respondent distribute the opt in notice by email to all potential class members (for whom it holds email addresses) on or before 1 December 2013.Background[2] The application arises from an order that I made on 25 October 2013, fixing 13 December 2013 as the date on which the period for opting in to the proceeding would close.2[3] By their application, the Plaintiffs seek orders that the date of 13 December 2013 be varied, to 1 March 2014; that the Court approve the form of notice that the Plaintiffs propose to publish and/or circulate advising that the opt in period is to close and when; and that the Defendant ("ANZ") email that notice to those of its customers (past and present) eligible to opt in to the proceeding.[4] ANZ opposes all of the orders sought.[5] I heard the parties on 22 November 2013. At the conclusion of the hearing I advised counsel for the Plaintiffs that I declined to make the orders sought in (a) and (c) above, that I had yet to decide on (b) and that I would let the parties have my reasons and/or decision, as the case may be, as soon as possible.1 Interlocutory Application for Order Varying Order for Class Closure and Related Orders, 18 November 2013 at [1].2 Cooper v ANZ Bank New Zealand Ltd [2013] NZHC 2827 at [55].Date[6] In my judgment of 25 October 2013, I made an order allowing the Plaintiffs to bring this proceeding as a representative proceeding.3 In Saunders v Houghton,4the Court of Appeal said that a judge making such an order should impose a final opt in or opt out date as part of case management procedures.5 I fixed a final opt in date accordingly. The date I chose was some four or so weeks later than ANZ sought. The Plaintiffs opposed the making of any order at all and made no submission as to the closing off date.[7] Mr Gray QC says, correctly, that the Plaintiffs had asked to be heard on the terms of any final opt in order. I understood (possibly wrongly) that the Plaintiffs'request related to the wording of the order, not the timing. I reserved leave to apply as regards the wording of the order, but not otherwise.6[8] The essence of the Plaintiffs' submission now is that a final opt in date of 13 December 2013 leaves the Plaintiffs insufficient time to communicate with potential group members.[9] Counsel for ANZ submits that there is no jurisdiction to revisit the order that I made. Any application for review was required to be filed and served within five working days of the date of the order, that is within five working days of 25 October 2013.7 As it was, the Plaintiffs did not indicate that they wished to revisit the date to until they filed and served a memorandum to that effect dated 7 November 2013.[10] I accept ANZ's submission that there is no basis on which I might now vary the order that I made, even if I were inclined to do so. I decline the order sought in [1](a) accordingly.3 High Court Rules, r 4.24.4 Saunders v Houghton [2013] 3 NZLR 652 (CA).5 Ibid, at [75].6 Cooper v ANZ Bank New Zealand Ltd, above n 2 at [56].7 High Court Rules, r 7.49.Approval of the draft opt in notice[11] The Plaintiffs propose to publish and/or circulate a notice to inform those eligible to opt in to the proceeding that the period in which they may do so is shortly to close. The Plaintiffs seek Court approval of the form of notice.[12] Counsel for ANZ submits that there is no jurisdictional basis for seeking the Court's approval of such a notice, and that such communications are a matter for the party concerned, not the Court. Alternatively, if the Court were to review the notice, ANZ submits that one aspect requires amendment, namely the deletion of a hyperlink in the notice to the "Fair Play on Fees" website.[13] The Plaintiffs' provision of the notice to the Court follows the procedure adopted in the Saunders v Houghton8 litigation. In that proceeding, French Jreviewed the notice that the plaintiff proposed to circulate to potential class members, informing them of the closure of the opt in period. French J did so in light of an earlier judgment of the Court of Appeal,9 in which the Court referred to criteria submitted to the Court on a related point. The criteria included a requirement that any communication inviting people to opt in to the proceeding be submitted to the Court for approval prior to distribution. The Court of Appeal said:10We make no judgment on these proposals... But they identify questions which warrant recording for future consideration.[14] In her subsequent judgment, French J said that she had found the criteria helpful and, as I have said, considered (and amended) the form of notice submitted to her for consideration.11[15] Given the shortness of time, I have decided that the best course is to review and comment on the Plaintiffs' notice. Whether this is a course that the Court should follow and, if so, in what circumstances, is a question for another day.8 Saunders v Houghton HC Christchurch CIV-2008-408-348, 19 May 2010.9 Saunders v Houghton [2010] 3 NZLR 331 (CA).10 Ibid, at [32].11 Saunders v Houghton, above n 8.[16] The notice is short and, on the whole, factual. I record, however, that it is not for the Court to check the content of the notice for accuracy as to matters such as the funding arrangements between a participant and the litigation funder (the final paragraph on page one of the notice is an example of such a point). It is for thePlaintiffs' legal advisers to ensure that the notice contains a fair summary of the position insofar as it relates to that type of issue.[17] As to amendments, I require the Plaintiffs to delete the sentence commencing:You are receiving this notice ...and the words:As a result, the Court has deemed it appropriate to notify you that ...[18] The Court is reviewing, not endorsing, the communication.[19] I also accept the submission of counsel for ANZ that the notice should not include a link to:www.fairplayonfees.co.nz/register.aspx.[20] It is common ground that the Fair Play on Fees website advocates thePlaintiffs' claim. In the hearing before me, counsel for the Plaintiffs advised that the Plaintiffs were willing and able to establish a website containing only the documents and information necessary for potential participants to make an informed decision as to whether or not they wished to opt in to the proceeding. The notice should refer to that (to be established) website. Alternatively, before distributing the opt in notice, the Plaintiffs could delete all advocacy from the Fair Play on Fees website, at least until 14 December 2013.Direction sought as to the emailing of the notice[21] The Plaintiffs seek an order directing ANZ to distribute the opt in notice by email to potential class members (for whom ANZ holds email addresses), to be emailed on or before 1 December 2013.[22] ANZ opposes the order sought on three grounds.[23] First, ANZ submits that there is no jurisdiction to make such an order. It also submits that, as a matter of principle, a defendant should not be required to assist a plaintiff to recruit group members to litigation against that defendant.[24] Secondly, ANZ submits that such an order is unnecessary in the present case as the Plaintiffs have proved themselves adept at generating publicity for their proceedings. On the face of it, there is some substance to this submission. There has been considerable newspaper publicity of the proceedings and more than 13,000 people or companies have registered to participate. That said, there is no information available as to the size of the potential class.[25] Thirdly, ANZ submits such an order would impose a substantial burden on it. In support of this submission, ANZ has filed evidence as to the manner in which it undertakes communications with customers and the implications for ANZ of such a communication. The evidence may be summarised as follows.12[26] ANZ would identify the past and present customers with whom the Plaintiffs wish to communicate by writing a bespoke computer programme to generate the necessary information. Having extracted the data, ANZ estimates that it would be at least four weeks before it could conduct any email communication. A large mail out is usually planned many months in advance. ANZ anticipates that the agency it employs to distribute such communications could not carry out the work at the present time.[27] ANZ's experience has been that mass communications to customers generate questions from recipients, requiring additional call centre staff who themselves must be briefed to ensure that they can answer questions. In the present case, a "rolling"distribution to customers might be required to manage the subsequent call load.12 Affidavit of Claire Jeanette Smollett sworn 18 November 2013; and Affidavit of Adriana van Nispen sworn 18 November 2013.[28] Lastly, ANZ does not have email addresses for all its customers. A letterdated 6 November 2013 from ANZ's solicitors to counsel for the Plaintiffs is to theeffect that ANZ may have email addresses for only 50 per cent of its customers.13[29] Leaving aside ANZ's submission as to jurisdiction and the Plaintiffs' apparent success in communicating with their target audience, I am satisfied that it would be unreasonable to make the order sought by the Plaintiffs. On the evidence before me I am satisfied that the necessary work could not be completed prior to 1 December 2013, and possibly not prior to 13 December 2013. I am also satisfied that the time and cost involved would place an unreasonable burden on ANZ. I decline the order accordingly.Costs[30] ANZ is entitled to costs, having (largely) succeeded in opposing the orders sought...................................................................M Peters J13 Affidavit of Claire Jeanette Smollett, above n 12, Exhibit "A".