D Barnett with R May - Plaintiffs
G Rich SC with T Kane - Toyota Motor Corporation Australia Limited
[2]
Quinn Emmanuel Urquhart & Sullivan - Plaintiffs
Herbert Smith Freehills - Toyota Motor Corporation Australia Limited
Clayton Utz - Subaru (Aust) Pty Limited
K & L Gates - Honda Australia Pty Limited
Ashurst - BMW Australia Ltd
Allens Linklaters - Nissan Motor Co (Australia) Pty Limited
Mills Oakley - Mazda Australia Pty Limited
File Number(s): 2017/340824
2017/353017
2017/378526
2018/9555
2018/9565
2018/42244
[3]
JUDGMENT
HIS HONOUR: By Deed of release and settlement (the Settlement Deed) made on 19 August 2021, parties to six separate representative proceedings (or class actions) in the Court settled the actions subject to the approval of the Court.
The defendant in each of the class actions is a distributor of motor vehicles which were fitted with airbags manufactured by Takata Corporation.
The proceedings are:
1. 2017/340824 Louise Haselhurst v Toyota Motor Corporation Australia Limited (the Toyota Proceedings);
2. 2017/353017 Kimley Whisson v Subaru (Aust) Pty Limited (the Subaru Proceedings);
3. 2017/378526 Akuratiya Kularathne v Honda Australia Pty Limited (the Honda Proceedings);
4. 2018/9555 Owen Brewster v BMW Australia Ltd (the BMW Proceedings);
5. 2018/9565 Jaydan Bond v Nissan Motor Co (Australia) Pty Limited (the Nissan Proceedings); and
6. 2018/42244 Camilla Coates v Mazda Australia Pty Limited (the Mazda Proceedings).
Section 173 of the Civil Procedure Act 2005 (NSW) (the Act) provides:
Approval of Court required for settlement and discontinuance
(1) Representative proceedings may not be settled or discontinued without the approval of the Court.
(2) If the Court gives such approval, it may make such orders as are just with respect to the distribution of any money, including interest, paid under a settlement or paid into the Court.
The Settlement Deed records that the parties intend, as soon as practicable after the end of the registration period, to seek orders effecting consolidation of all of the proceedings and approving the settlement pursuant to s 173 of the Act.
Clause 9.3 of the Settlement Deed requires the plaintiffs in each case to seek orders, defined as "Preliminary Orders", in the form, or substantially in the form, of an annexure to the Settlement Deed.
By Notices of Motion filed on 23 August 2021, the plaintiffs in each case move for the Preliminary Orders, being orders:
1. approving the notice to group members of the proposed settlement and the settlement approval application;
2. allowing group members who wish to object to the proposed settlement an opportunity to do so;
3. allowing group members who wish to register to participate in the proposed settlement an opportunity to do so;
4. for the appointment of a scheme administrator to manage the registration process;
5. giving some group members in the Toyota Proceedings notice of their right to opt out and an opportunity to do so;
6. timetabling the settlement approval hearing in early 2022; and
7. for money paid into court as security for costs to be paid into the plaintiffs' solicitors trust account pending settlement approval.
The following affidavits are read in support of the application:
Damian John Scattini - the plaintiffs' solicitor - affirmed 23 August 2021
Gregory John Williams - Subaru's solicitor - sworn 24 August and 25 August 2021
Peter Mark Butler - Toyota's solicitor - sworn 26 August 2021
The orders seek approval for the form and content of Settlement Notices comprising a Long Form Notice, an abridged newspaper notice, and a covering email. There is provision for a slightly different version of the covering email for persons who have previously signed litigation funding agreements or participated in the questionnaire process referred to below. The orders make provision for a process to publish the proposed settlement.
The further opt-out process is necessitated by the fact that 6,260 Toyota Corolla vehicles (originally produced in South Africa) were identified by Toyota in about September 2020 as having been sold in Australia, and therefore, as being covered by the proceedings. When original opt-out notices were sent, the owners of these vehicles would not, or may not, have known that they were group members.
The orders provide for the use of personal information about group members supplied by State and Territory vehicle registration authorities and the National Exchange of Vehicle and Driver Information System (NEVDIS) and Austroads Limited, the peak organisation of Australasian road transport and traffic agencies.
The defendants obtained data from certain State and Territory vehicle registration authorities for the purpose of conducting vehicle recalls, including email addresses from persons who may be group members. The orders require the defendants to provide the administrator with contact data to enable the provision of the Settlement Notice to those persons.
The defendants also obtained NEVDIS data off Austroads for the purposes of conducting recalls. The defendants will be required to provide the administrator of the registration process with data obtained from Austroads for the purpose of determining whether persons who register to participate in the settlement are likely to be group members.
The orders build in protections.
Austroads has advised that it does not object to the defendants consenting to the orders. The State and Territory authorities either consent, or do not oppose, the provision of data in accordance with the orders.
There is precedent for the making of these types of orders: Cantor v Audi Australia Pty Limited (No 2) [2017] FCA 1042.
Schedule 1 to the Privacy Act 1988 (Cth) contains the Australian Privacy Principles. Principle 6.1, read with principle 6.2(b), prohibits Austroads from using or disclosing information about an individual, which was collected for a particular purpose, for another purpose unless, relevantly, the use or disclosure is required or authorised by a court order. The orders which I propose to make will constitute authorisation to Austroads to use the information accordingly.
Previously, the Court ordered the distribution of a questionnaire to potential group members in the Toyota Proceedings and the Subaru Proceedings. The orders deem persons who have responded to the questionnaire to have registered to have participated in the Settlement. It will be necessary for the administrator to access that information to enable those persons to be contacted so as to enable their claims to be assessed. The orders make provision for Toyota and Subaru to provide the questionnaire responses to the administrator. The orders sought also contain protections.
[4]
Amendments
13 September 2021 - Typographical error in Schedule A
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 13 September 2021
The orders make provision for the appointment of a third party administrator of the proposed settlement. The evidence is that the provider can undertake the required tasks at a rate significantly lower than that of the plaintiffs' lawyers' hourly rate. The orders contemplate the third party provider creating and hosting a settlement website.
I am satisfied that orders as framed are appropriate to be made.
I will make, mutatis mutandis, orders in each of the proceedings in accordance with those which I will make in the Toyota Proceedings which appear as SCHEDULE A (512504, pdf) to these reasons.