Fuller & Anor v Allianz Australia Insurance Ltd & Anor

[2] Also known as Motor Equity, Purchase Price, or Value Protect insurance.

[3] A more detailed explanation of the claims is set out in Section C below.

[4] Ms Fuller was represented by Johnson Winter & Slattery (JWS). Ms Fuller's proceeding was supported by litigation funding, as detailed later in these reasons.

[5] Mr Wilkinson was represented by Maurice Blackburn (MB). MB conducted Mr Wilkinson's proceeding on a 'no win, no fee' basis, prior to consolidation.

[6] The co-operation protocol was annexed to the orders of Nichols J made on 15 September 2021.

[7] Written reasons for the award of the GCO appear on the Court file: Fuller v Allianz; Wilkinson v Allianz, (Supreme Court of Victoria, Nichols J, 13 December 2022, written reasons provided to the parties 1 November 2024, first revision dated 28 February 2025) (GCO Reasons).

[8] I will describe this date and time as the Registration Deadline.

[9] There were 849,918 unique persons on the list used for distribution under the Registration Deadline, which was prepared by the plaintiffs' solicitors from the Purchasers List by removing invalid email addresses and mobile phone numbers and de-duplication.

[10] The Court observed that this should not be read as a statement 'saying generally that a plaintiff's request for additional rounds or a particular form of notification ought be granted provided the plaintiff bears the costs of notification, or that a defendant should not share the costs of notification unless the defendant consents to the notification regime'. Those matters will turn on the circumstances of the particular case: Fuller v Allianz; Wilkinson v Allianz, (Supreme Court of Victoria, Nichols J, 3 July 2024), [17]-[20].

[11] Zoey Anderson-Vaughan v AAI Limited & Ors (Supreme Court of Victoria, S ECI 2021 00930, commenced 30 March 2021).

[12] The Settlement Deed is exhibited to the affidavit of Rebecca Gilsenan affirmed on 22 November 2024.

[13] Order of Delany J in Fuller & Anor v Allianz Australia Insurance Ltd & Anor (Supreme Court of Victoria, S ECI 2020 02853, 11 December 2024).

[14] His Honour also made orders providing for amendment of the notices, if required.

[15] This list was based on the list of purchasers, as described earlier in these reasons.

[16] The order of Delany J also required objectors to sign their notice of objection or affix an electronic signature to their notice of objection.

[17] The costs of the special referee's report are costs paid as part of the administration costs. This is dealt with later in the judgment.

[18] [2024] VSC 733, [42]-[43] (Andrianakis).

[19] For completeness, I note that at the hearing, I raised concerns about a blanket confidentiality order initially sought over the GCO submissions filed on behalf of MB and JWS. Counsel for MB and JWS readily conceded that this would be too broad and provided to my Chambers a version of the submissions identifying particular extracts of the submissions over which they pressed a confidentiality claim. I have reviewed the proposed confidentiality redactions and am content to order that those extracts of the submissions be kept confidential.

[20] In this regard, I refer to the evidence set out in paragraph 8 of the Piesiewicz Affidavit in respect of the materials identified by JWS and to paragraph 7 of the Gilsenan Affidavit. I accept the submissions made in the plaintiffs' written outline of submissions at [15]-[19].

[21] Arrangements were made for that attendance to take place remotely via audiovisual link, to accommodate any objectors or their legal representatives who were not able to attend the Court in person. All objectors were provided with the audiovisual link in advance of the hearing.

[22] Prior to the Opt-out Orders being made, orders were made by Nichols J on 14 July, 13, 17 and 21 August, and 18 October 2021 removing a total of 99 persons as group members. These persons were granted liberty until the close of the opt-out period to apply to rejoin the proceedings as a group members. Following the Opt-out Orders, orders were made on 14 November and 20 December 2021 removing a further 51 persons as group members, with liberty to apply.

[23] Andrianakis [2024] VSC 733.

[25] See Williams v FAI Home Security Pty Ltd (No 4) (2000) 180 ALR 459, 465-6 [19] (Goldberg J); Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Ltd (No 2) [2006] FCA 1388; (2007) 236 ALR 322, 332-6 [30]-[40] (Jessup J) (Darwalla); Blairgowrie Trading Ltd v Allco Finance Group Ltd (rec and mgr apptd) (in liq) (No 3) [2017] FCA 330; (2017) 343 ALR 476, 499-500 [81]-[85] (Beach J) (Blairgowrie); Murillo v SKM Services Pty Ltd [2019] VSC 663, [29]‑[37] (John Dixon J) (Murillo). The approach of the Supreme Court of Victoria largely mirrors the approach taken by the Federal Court of Australia in respect of representative proceedings brought under Part IVA of the Federal Court of Australia Act 1976 (Cth). See, for example, Iddles & Anor v Fonterra Aust Pty Ltd & Ors [2023] VSC 566, [22]-[26].

[26] Botsman v Bolitho [2018] VSCA 278; (2018) 57 VR 68, 111 [201] (Tate, Whelan and Niall JJA) (Botsman); Elliott‑Carde v McDonald's Australia Ltd [2023] FCAFC 162; (2023) 301 FCR 1, 60-1 [386]-[388] (Lee J); Camilleri v The Trust Company (Nominees) Ltd [2015] FCA 1468, [32]-[44] (Moshinsky J) (Camilleri); Lifeplan Australia Friendly Society Ltd v S&P Global Inc (Formerly McGraw-Hill Financial, Inc) (A Company Incorporated in New York) [2018] FCA 379, [12]-[15] (Lee J) (Lifeplan Australia); Fowkes v Boston Scientific Corporation [2023] FCA 230, [31]-[45] (Lee J).

[27] SC GEN 10 Conduct of Group Proceedings (Class Actions) (Second revision), [16.6].

[28] Murillo [2019] VSC 663, [32] (citations omitted). See also Bolitho [2018] VSCA 278; (2018) 57 VR 68, 112, [207]; Kelly v Willmott Forests Ltd (in liquidation) (No 4) [2016] FCA 323; (2016) 335 ALR 439, 456 [74] (Murphy J).

[30] [2006] FCA 1388; (2007) 236 ALR 322, 339 [50].

[31] The day after the hearing, Ms Karhani provided a statutory declaration to the Court Registry through which she purported to opt out of the proceeding. She appears to be attempting to make a conditional opt-out: unless she receives a specific amount she has identified, she wants to opt out. This is not a permitted way to opt out of a group proceeding. In any event, I refer to Section G above. Ms Karhani's application to opt out is refused.

[33] Camilleri [2015] FCA 1468, [42], [44].

[34] Ibid [43]. See also Ghee v BT Funds Management Ltd [2023] FCA 1553, [59]-[60] (Murphy J) (Ghee); Ellis v Commonwealth of Australia [2023] NSWSC 550, [29] (Beech-Jones J).

[35] Downie v Spiral Foods Pty Ltd [2015] VSC 190, [53] (J Forrest J) (Downie).

[36] [2015] FCA 1468, [44]. Those factors were not expressed to be, and are not, an exhaustive list.

[37] The Eligibility Criteria is set out in clause 5.1. In brief, the criteria will be satisfied where the person is a Matching Group 1 RGM (in which case no additional information is required); or if they are a Matching Group 2 RGM or an Unmatched Registrant who provided additional information in order to be matched to purchaser data through the eligibility process set out in clause 5.2, and they have not become a Non-Responsive Group Member, as defined under the SDS.

[38] The loss assessment formula is set out in a confidential annexure to the SDS which group members could inspect upon meeting certain requirements, such as agreeing to keep the material confidential. The Court was provided with a copy of the loss assessment formula.

[39] Plaintiffs' written outline of submissions, [51].

[40] Citing O'Dea v Westpac Banking Corporation [2019] NSWSC 1078, [70] (Sackar J); Lifeplan Australia [2018] FCA 379, [32] (Lee J).

[41] See clauses 11.4 and 11.8 of the SDS.

[42] See, eg, Ghee [2023] FCA 1553, [61(e)].

[45] Noting that the amount approved includes the costs of the Referee's report.

[46] Allen v G8 Education Ltd (No 4) [2024] VSC 487, [43]-[44] (Allen).

[48] [2024] NSWSC 717, [68]-[69] (Nixon J).

[49] [2024] NSWSC 1171, [46].

[50] Other cases to which I was referred where a pre-approved amount was ordered for settlement administration are: Komlotex Pty Ltd v AMP Limited (No 4) [2023] NSWSC 1378, [15] (Ward CJ in Equity); Raad & Ors v The Cosmetic Institute Pty Limited & Ors [2024] NSWSC 650, [86] (Weinstein J); Williams & Kersten Pty Ltd v National Australia Bank Limited (No 5) [2025] FCA 155, [22] (Lee J); Wills v Woolworths Group Ltd [2022] FCA 1545 (Beach J).

[51] Street v State of Western Australia [2024] FCA 1368, [182].

[53] Which is the amount sought by the plaintiffs including GST for MB's professional fees and disbursements for administering the settlement.

[54] See, eg, Rowe v AusNet Electricity Services Pty Ltd & Ors [2015] VSC 232, [138]-[142].

[55] See Gilsenan Affidavit at [152], Table 4; Vince Morabito, 'Group Costs Orders, Funding Commissions, Volume of Class Action Litigation, Reimbursement Payments and Biggest Settlements' (Report, Department of Business Law and Taxation, Monash University, 4 February 2025), 46-55.

[56] Downie [2015] VSC 190, [171].

[58] Mumford v EML Payments Limited [2022] VSC 750, [94]-[95].

[59] [2024] VSC 487, [63].

[62] [2022] VSC 32, [90]-[92].

[63] Fox v Westpac; Crawford v ANZ [2021] VSC 573; (2021) 69 VR 487, 529-30 [148] (Nichols J).

[64] Plaintiffs' written outline of submissions, [70]-[72].

[65] Written submissions of MB and JWS regarding the GCO, [24].

[72] Allen [2024] VSC 487, [62].

[73] See, eg, Allen [2024] VSC 487, [85]-[88].