Darcy v Medtel Pty Limited

REASONS FOR JUDGMENT 1 The respondents move the Court for orders as follows: "1. Pursuant to section 33J(3) of the Federal Court of Australia Act 1976 (Cth), the Court extends the date by which those group members, save for the members identified in Schedule 1 of this Notice of Motion, who have not opted out of the proceedings may opt out of these proceedings to 18 September 2002; 2. The form and content of the notice which is Annexure RG1 to the affidavit of Rebecca Gilsenan affirmed on 21 September 2001, as approved by Justice Sackville in his judgment dated 26 September 2001 and amended by his Honour on 16 May 2002, be further amended and approved for the purposes of section 33Y(2) of the Federal Court of Australia Act 1976 (Cth) in accordance with Schedule 2 of this Notice of Motion; 3. The parties send the further amended notice referred to in Order 2 above, on or before 7 August 2002, by registered post to all group members, save for the group members identified in Schedule 1 of this Notice of Motion, who have not opted out of the proceedings on or before 30 November 2001; and 4. The Applicant pay the costs of sending the notices referred to in paragraph 3 and of this Notice of Motion." This motion has been necessitated by an unfortunate error that was made by the applicants' solicitors. 2 On 26 September 2001, I made an order pursuant to s 33J(1) of the Federal Court of Australia Act 1976 (Cth) ("Federal Court Act") fixing 30 November 2001 as the date by which group members could opt out of the proceedings: Darcy v Medtel Pty Ltd [2001] FCA 1369. I also approved a notice to be sent to group members for the purposes of s 33Y(2) of the Federal Court Act. The notice was to be sent to each group member, or to the executor or administrator of the estate of each deceased group member, by pre-paid registered post in accordance with a specified protocol. 3 On 16 May 2002, I made orders extending the opt-out date to 28 June 2002 for eight group members for whom updated addresses had been located after the previous opt-out date had passed. 4 It is common ground that there are 255 group members (including deceased group members). Of these, 63 have opted out. All but four of those who have opted out did so before 30 November 2001. 5 The difficulty is that it now appears that some of the notices sent to group members pursuant to the orders made on 26 September 2001 had the second page of the notice missing. There is no way of telling how many group members received the defective notices. The second page contained important information that might bear on a group member's decision either to opt out or not opt out of the proceedings. 6 The respondents seek the orders referred to in their motion pursuant to s 33ZF(1) of the Federal Court Act, which provides as follows: "In any proceedings (including an appeal) conducted under this Part, the Court may, of its own motion or on application by a party or a group member, make any order the Court thinks appropriate or necessary to ensure that justice is done in the proceeding." 7 The parties are in agreement that steps must be taken to remedy possible injustice that may have occurred by reason of the error in printing and sending the notices to group members. They are also in agreement that s 33ZF(1) provides the source of power for this to be done. 8 The respondents' motion seeks an order that an amended notice be sent only to group members who have not opted out of the proceedings. The applicant recognises that group members who have not opted out may well have decided not to do so under a misapprehension attributable to the absence of the second page of the notice. But they say that those who have already opted out also might have misunderstood the position and should be given an opportunity to withdraw their opt out notice. 9 In my view, the applicant's submission is correct. It is impossible to know whether a group member who received an incomplete notice and who lodged an opt out form might have taken a different course had he or she received the complete notice. Indeed, in the end Mr Loveday, who appeared for the respondents, did not really dispute that an amended notice would have to be sent to all group members and that an opportunity would have to be provided to those who had opted out to withdraw their opt out notice. 10 I should add that, if it were possible to do so, it would be preferable to send the further notice only to those who received the incomplete notice in October 2001. Unfortunately, it is impossible at this stage to identify which group members received the incomplete notice and which received the correct notice. 11 I should also make it clear that the reason for giving any group member who has opted out an opportunity to withdraw his or her opt out notice is to overcome any injustice arising from the possibility that the group member acted on incomplete information in making his or her decision. Had an application been made simply on the ground that group members who have opted out should be permitted to change their mind, the result may well have been different: King v AG Australia Holdings Limited (formerly GIO Australia Holdings Limited) [2002] FCA 364 at [6], per Moore J. 12 The Schedule to this judgment sets out a covering letter and amended notice (including an opt out form and "Letter to the Court"). Each of these documents should be sent to each group member. 13 The orders I make are as follows: