Pursuant to s 33J of the Federal Court of Australia Act 1976 (Cth) (the Act), 14 December 2017 at 4.00 pm AEST be fixed as the date and time on or before which a group member may opt out of this proceeding (Deadline).
Group members be given notice pursuant to s 33X(1)(a) and s 33X(5) of the Act of the fact that they may opt out of this proceeding in accordance with Order 4 of these Orders.
The form and content of the 'Opt Out and Registration Notice' (the Notice), and the abridged version of the Notice, as annexed to these Orders be, and are hereby, approved pursuant to s 33Y(2) of the Act.
Pursuant to s 33ZF of the Act, any group member who wishes to opt out of this proceeding must, on or before 4.30 pm AEDT on 14 December 2017, deliver to the New South Wales District Registry of the Court an opt out notice in the form of Schedule A to the Notice.
Pursuant to s 33Y(3) of the Act, the Notice be given to group members according to the following procedure:
(a) the second respondent is to provide by 4.00 pm on 13 October 2017 to the solicitors for the applicant and to a third party distribution agent to be agreed between the parties (Distribution Agent) a schedule containing, according to the second respondent's records, the last known names, email addresses and / or postal addresses of persons and entities who the second respondent's records show have ever held a Money Market Deposit Account in respect of which a director, officer, employee or agent of Sherwin Financial Planners Pty Ltd or Sherwin Financial Planners Pty Ltd itself was authorised to act as an Authorised Signatory (Class Member Contact Schedule);
(b) by the same time the second respondent is to notify the other parties of any post office boxes or addresses on the Class Member Contact Schedule which the second respondent believes to be associated with Sherwin Financial Planners Pty Ltd or any related entity;
(c) the parties are promptly to confer as to what should occur in relation to potential group members for whom the only address held is a post office box or address believed to be associated with Sherwin Financial Planners Pty Ltd or any related entity. If the parties cannot reach agreement they are to promptly contact the Associate to Yates J to relist the matter;
(d) the solicitors for the applicant are, until further order, to keep the contents of the Class Member Contact Schedule confidential;
(e) the solicitors for the applicant are to instruct the Distribution Agent to cause the distribution of the Notice by 20 October 2017 to the email addresses and postal addresses (to the extent that such addresses have been provided) referred to in the Class Member Contact Schedule;
(f) the solicitors for the applicant are to instruct the Distribution Agent to inform the solicitors for all of the parties of the details of any notices which are returned to the Distribution Agent undelivered;
(g) continuously throughout the period from 20 October 2017 to 14 December 2017, the applicant's solicitors are to display the Notice on its website ;
(h) as soon as practicable after 20 October 2017, the applicant is to cause to be published an abridged version of the Notice, as approved by the Court, in the following newspapers:
(i) The Courier Mail, Queensland; and
(ii) The Rockhampton Bulletin.
(i) continuously throughout the period from 20 October 2017 to 14 December 2017, the Notice is to be displayed on the class action page for this Proceeding on the website of the Federal Court of Australia and be available for inspection at the District Registry of the Court in Sydney, Melbourne, Canberra, Brisbane, Adelaide, Perth, Hobart and Darwin.
The costs of sending, displaying and publishing the Notice as described in Order 5 above be paid as follows:
(a) The cost of providing a copy of the Notice to group members using email and/or postal addresses as provided for in Order 5(e) above, be initially paid by the applicant, on the basis that all of the above costs will subsequently fall to be dealt with by the Court as part of the costs of the proceeding; and
(b) the cost of publishing an abridged version of the Notice as required by Order 5(h) above be initially paid by the applicant, on the basis that all of the above costs will subsequently fall to be dealt with by the Court as part of the costs of the proceeding.
If, on or before 14 December 2017, the solicitors for any party receive a notice purporting to be an opt out notice referable to this proceeding, the solicitors file that notice with the Federal Court of Australia, NSW District Registry, within three (3) days of receipt of the notice by the solicitors and the notice be treated as an opt out notice received by the Court at the time it was received by the solicitors.
The parties' solicitors be granted leave to inspect the Court file and to copy any opt out notices filed by group members.
By the Deadline, Group Members who wish to register to participate in the distribution of any amount agreed in settlement of this proceeding must register by completing and submitting the registration form annexed as Schedule B to the Notice (Group Member Registration Form) to the applicant's solicitors.
Pursuant to s 33ZF of the Act, and subject to any further order of the Court, any Group Member who by the Deadline does not register or opt out of the proceedings in accordance with the manner provided for in these Orders will:
(a) remain a group member in this proceeding for all purposes of this proceeding, other than in (b), below; and
(b) not be entitled to receive a distribution from any settlement of this proceeding.
By 6 October 2017, the applicant to provide the respondents with the reviewer and system coding of the control set, training and QC rounds of the applicant's technology assisted review of the documents provided by the liquidators of Sherwin Financial Planners Pty Ltd (and other related companies).
By 12 October 2017, the applicant provide any further particulars in accordance with Order 15 of the orders made on 22 May 2017 (as varied by Order 7 made on 26 July 2017).
The applicant be granted leave to amend the Amended Statement of Claim by 9 October 2017, in the terms of the Further Amended Statement of Claim attached to the email from Laura Weston of Quinn Emanuel dated 18 September 2017 with any additional further particulars provided in response to the requests made by the respondents on 25 September 2017.
By 13 October 2017, the respondents file and serve any Defence to the Further Amended Statement of Claim.
By 20 October 2017, the applicant file and serve any Reply to the Defence to the Further Amended Statement of Claim.
The applicant pay the respondents' costs, if any, thrown away be reason of the amendments to the Amended Statement of Claim.
The parties attend a mediation by 31 January 2018 before a private mediator to be agreed by the parties or, failing agreement, to be nominated by the Chief Executive Officer of The Resolution Institute.
The proceeding be listed for a further case management hearing on 11 December 2017.
Liberty to apply upon 3 days' notice
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
OPT OUT AND REGISTRATION NOTICE
FEDERAL COURT OF AUSTRALIA
Petersen Superannuation Fund Pty Ltd v Bank of Queensland & Anor
NSD 362/2016
IMPORTANT: This Notice contains information about your legal rights.
Why are you receiving this Notice?
The Federal Court has ordered that this Notice be published for the information of persons who might be members of the class on whose behalf the action is brought and may be affected by the action (the Class Members). You have been identified as a potential Class Member.
You should read this Notice carefully. Any questions you have concerning the matters contained in this Notice should NOT be directed to the Court. If there is anything in it that you do not understand, you should seek legal advice.
Why is this Notice important?
This Notice contains important information about the background to the BOQ Class Action (as defined below). In particular, it tells you about:
a) your right to opt out of the litigation; or alternatively,
b) should you not wish to opt out and should you wish to register to participate in the settlement of the class action and receive any compensation that may become available if the class action settles, the Notice sets out the steps to register.
The deadline to either opt out of or register to participate in any settlement of the class action is 14 December 2017
IMPORTANT: If you do nothing in response to the Notice (neither opt out nor register), you will lose any rights to any compensation from the class action if it settles, but will be bound by any such settlement. If the class action does not settle you will be bound by any judgment
What is a class action?
A class action is an action that is brought by one or more persons (the Applicants) on their own behalf and on behalf of a group of people against other persons (the Respondents) where the Applicants and the Class Members have similar claims against the Respondents.
Class Members are not individually responsible for the legal costs associated with bringing the class action. Generally, in a class action, only the Applicant is responsible for those costs.
Class Members are bound by any outcome reached in the class action, unless they opt out of the proceeding.
A binding result can happen in two ways: either by a judgment following a trial, or by a settlement which might happen at any time. If there is a judgment or a settlement of a class action, class members will not be able to pursue the same claims and may not be able to pursue similar or related claims against the respondent in other legal proceedings. Class Members should note that in a:
(a) judgment following trial, the Court will decide various common factual and legal issues in respect of the claims made by the applicants and class members. Unless those decisions are successfully appealed, they bind the applicants, class members and the respondents. Importantly, if there are other proceedings between a class member and the respondents, it is likely that neither of them will be permitted to raise arguments in that proceeding which are inconsistent with a factual or legal issue decided in the class action.
(b) settlement of a class action, where the settlement provides for compensation to class members, it may extinguish all rights to compensation which a class member might have against the respondents which arise in any way out of the events or transactions which are the subject-matter of the class action.
If you consider that you have claims against any respondent in the class action referred to in this Notice which are based on your individual circumstances or otherwise additional to the claims described in the class action, then it is important that you seek independent legal advice about the potential binding effects of the Class Actions before the deadline for opting out (see below).
The deadline is 14 December 2017.
What is an 'Opt Out'?
In a class action the Applicant does not need to seek the consent of Class Members to commence a class action on their behalf or to identify a specific Class Member. However, Class Members can cease to be Class Members by opting out of the class action. Unless you opt out, you will be bound by the outcome of the class action. This is explained further below.
What is the BOQ Class Action about?
On 11 March 2016, Petersen Superannuation Fund Pty Ltd ACN 136 059 562 (Petersen) commenced class proceedings against Bank of Queensland Limited ABN 32 009 656 740 (BOQ) and DDH Graham Limited ABN 28 010 639 219 (DDH) (the BOQ Class Action) on behalf of itself, and other persons, who invested money in a BOQ financial product, namely the "Money Market Deposit Account" (MMDA).
Petersen, together with other persons in the class (the BOQ Class Members), was advised by Sherwin Financial Planners Pty Ltd (SFP) and/or other persons and companies associated with SFP (collectively Sherwin) to deposit funds into a BOQ MMDA for the purpose of investment.
Petersen alleges that Sherwin acted without authority and fraudulently in respect of the funds invested in Petersen's BOQ MMDA (the Petersen MMDA).
Petersen contends that BOQ and DDH, as operators and administrators of the Petersen MMDA, ought to have been on notice of any suspicious activity taking place, including any indicia of fraud, on the Petersen MMDA by Sherwin, pursuant to the obligations owed by BOQ and DDH to Petersen under the terms of the MMDA (the Petersen Contract).
BOQ and DDH deny Petersen's allegations and are defending the BOQ Class Action. Further to this, BOQ has filed a cross claim against Petersen. In effect, it alleges that if BOQ is found to have breached the Petersen Contract and the breach (or breaches) are found to have caused loss or damage to Petersen, that being the loss of Petersen's investment funds, then Petersen is liable to indemnify BOQ under the terms of the Product Disclosure Statement for its financial loss. Petersen denies BOQ's allegations and is defending the cross claim.
The BOQ Class Action is funded by a litigation funder, Vannin Capital Operations Limited (Vannin Capital). You can obtain a copy of Vannin Capital's Litigation Funding Agreement by contacting Quinn Emanuel Urquhart & Sullivan (Quinn Emanuel) on (02) 9146 3548 or by email meaganbertolatti@quinnemanuel.com
Are you a Class Member?
You are a BOQ Class Member to whom this proceeding relates, if:
(a) you were advised by SFP or one or more of its directors, officers, employees or agents to deposit funds into a BOQ MMDA;
(b) you entered into a contract with BOQ, and its agent DDH, in respect of a MMDAs;
(c) a director, officer, employee or agent of Sherwin acted as an Authorised Signatory in respect of that MMDA;
(d) you deposited funds into your MMDA; and
(e) you have been unable to recover some or all of the funds deposited into your MMDA.
If you are unsure whether or not you are a BOQ Class Member, you should contact Quinn Emanuel on (02) 9146 3548 or email meaganbertolatti@quinnemanuel.com, or seek your own legal advice without delay.
Will you be liable for legal costs?
You will not become liable for any legal costs simply by remaining as a BOQ Class Member for the determination of common questions. However:
(a) if any compensation becomes payable to you as a result of any order, judgment or settlement in the class actions, the Court may make an order that some of that compensation be used to help pay a share of the costs which are incurred by the applicants in running the Class Actions but which are not able to be recovered from the respondents;
(b) class actions are often settled out of court. If this occurs in the BOQ Class Action, you may be able to claim from the settlement amount without retaining a lawyer. In that event, the Court may nonetheless require you to contribute to the Applicants' own legal costs (as to which, see subparagraph (a) above); and
(c) Petersen may also seek an order that part of any compensation that becomes payable to class members who have not signed a funding agreement with Vannin Capital is paid to Vannin Capital in return for Vannin Capital funding the action. Alternatively, Petersen may apply for orders that class members receive the same rate of return in the BOQ Class Action, whether or not they have signed a funding agreement with Vannin Capital.
If the BOQ Class Action is unsuccessful, Vannin Capital will pay Petersen's costs and will be liable to satisfy any order against Petersen to pay BOQ and/or DDH's costs.
What will happen if you do not opt out?
Unless you opt out, you will be bound by any settlement or judgment made in the BOQ Class Action. If the class action is successful you may be entitled to share in the benefit of any order, judgment or settlement in favour of the Applicant and Class Members, although you may have to satisfy certain conditions before your entitlement arises and you will need to register your interest in receiving compensation from any settlement (see 9 below).
If the action is unsuccessful or is not as successful as you might have wished, you will not be able pursue the same claims and may not be able to pursue related claims against the Respondents in other legal proceedings.
What you need to do
Option A: Register your interest in receiving compensation from any settlement
If you do not wish to opt out and if you wish to participate in any settlement of the class action you must complete the "Class Member Registration Form" enclosed with this Notice and post it to Quinn Emanuel at level 15, 111 Elizabeth Street, Sydney NSW 2000.
Registrations must be received by Quinn Emanuel before 4:00pm AEST on 14 December 2017. Registrations received after this time will not be accepted with the result that you will be treated as having not responded to this notice (see Option C below).You can contact Quinn Emanuel on (02) 9146 3548 or
email meaganbertolatti@quinnemanuel.com to be informed about the progress of the BOQ Class Action.
Option B: If you want to opt out
If you do not wish to remain a class member of the BOQ Class Action, you must opt out of the BOQ Class Action, by completing and returning the attached Opt Out Notice, prior to or on the Opt Out date, 14 December 2017.
If you opt out of the class action, you will not be bound by or entitled to share in the benefit of any order, judgment or settlement in the BOQ Class Action, but you will be at liberty to bring your own claim against the Respondents provided that you issue Court proceedings within the time limit applicable to your claim (which time limit may or may not have already expired). If you wish to bring your own claim against the respondents you should seek your own legal advice about your claim and the applicable time limit prior to opting out.
If you wish to opt out of the BOQ Class Action you must do so by completing a "Notice of opting out by class member" (Schedule A to this Notice), and return it to the Registrar of the Federal Court of Australia at the address on the form.
IMPORTANT: the Notice must reach the Registrar by no later than 4:30pm AEDT on 14 December 2017
otherwise it will not be effective.
You should submit the Notice of Opting Out by Class Member if:
(a) you qualify as a BOQ Class Member and you wish to opt out of the BOQ Class Action; or
(b) you believe that you have been incorrectly identified as a BOQ Class Member, because you do not meet the criteria set out in the section headed "Are you a class member?" above.
Each class member seeking to opt out should fill out a separate form. If you are opting out on behalf of a company or business, please provide your name, the name of the company or business and your position within the company or business (e.g. director or partner).
Option C - Not respond to this notice
If you do nothing, you will remain a class member in the class action and you will be bound by any court judgment or settlement agreement. However, if there is a settlement agreement and if the settlement agreement provides for compensation to be payable, you will not be permitted to benefit from the settlement unless you have registered your interest in receiving compensation from settlement (see Option A above).
In other words, if you do nothing, you will lose your right to participate in any settlement of this class action, though you may (depending on the facts of your claim) still be able to benefit from any judgment in this class action if it does not settle.
Where can you obtain copies of relevant documents?
Copies of relevant documents, including the Applications, the Amended Statement of Claim, Defences and Cross Claim may be obtained by:
(a) requesting an electronic or hard copy version of the document directly from Quinn Emanuel;
(b) inspecting them during the hours of 10am and 3pm at the Sydney office of Quinn Emanuel; or
(c) contacting a District Registry of the Federal Court (contact details are available www.fedcourt. gov.au).
Please consider the above matters carefully. If there is anything of which you are unsure, you should:
(a) contact Quinn Emanuel on (02) 9146 3548 or by email, meaganbertolatti@quinnemanuel.com; or
(b) seek your own legal advice.
You should not delay in making your decision.
Schedule A
Form 21
Rule 9.34
Opt out notice
No. 362 of 2016
Federal Court of Australia
District Registry: New South Wales
Division: General
PETERSEN SUPERANNUATION FUND PTY LTD ACN 136 059 562
Applicant
BANK OF QUEENSLAND LIMITED and Anor ABN 32 009 656 740
Respondents
To: The Registrar
Federal Court of Australia
New South Wales District Registry
Level 17, Law Courts Building
Queen Square Sydney NSW 2000
[Name of group member], a group member in this representative proceeding, gives notice under section 33J of the Federal Court of Australia Act 1976, that [Name of group member] is opting out of the above representative proceeding.
Date:
Signed by [Name]
[Insert capacity eg group member / Lawyer for the group member]
[2]
Schedule B
CLASS MEMBER REGISTRATION FORM
"BOQ Class Action"
Federal Court of Australia Proceeding NSD 362/2016
To: Quinn Emanuel
Level 15 111 Elizabeth Street Sydney NSW 2000 Attention: Damian Scattini
The class member named below registers to participate in the settlement of the BOQ Class Action
SECTION A - DETAILS OF CLAIMANT
Name of claimant: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
MMDA account name(s) (if known)
MMDA account number(s) (if known)
Person completing this form (print): . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Authority of person completing this form (e.g., company director, lawyer) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Telephone contact: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Email contact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
[3]
SECTION B - CLASS MEMBER IDENTIFICATION (CIRCLE YES OR NO)
Were you advised by Sherwin Financial Planners Pty Limited (SFP) or someone on its behalf to deposit funds into a Money Market Deposit Account (MMDA)? Yes / No
Did you enter into a contract in respect of the MMDA by completing an application form contained in the MMDA Product Disclosure Statement titled "Bank of Queensland Money Market Deposit Account Managed by DDH Graham Limited"? Yes / No
Have you been unable to recover some or all of the funds you deposited into the MMDA? Yes / No
[4]
SECTION C - CLAIMANT'S ALLEGED LOSS
What is the amount you claim you have been unable to recover from your MMDA (please do not include any amount you withdrew or authorised to be paid or invested on your behalf- for eg, to the ATO or by signing an Application Form attached to a Prospectus to acquire notes issued by Wickham Securities Limited)? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
If you are not aware of the precise amount, please provide an estimate, in which case please specify you are providing an estimate only.
Please attach to this form copies of any documents supporting your claim (by way of example only, written communications, including emails, between you and SFP; and account statements, investment tables or the like which were provided to you) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
[5]
SECTION D - SANDHURST CLASS ACTION (CIRCLE YES OR NO)
Have you signed a funding agreement with Litman Holdings Pty Ltd in respect of the separate class action in the Federal Court of Australia, Graeme Clarke and Marion Clarke in their capacity as trustees of the G&M Clarke Superannuation Fund v. Sandhurst Trustees Limited (Proceedings QUD591/2015) (Sandhurst Class Action)? Yes / No
[6]
SIGNED BY OR ON BEHALF OF EACH CLAIMANT:
……………………………………… …………………………………………….
Capacity of the person signing (e.g., claimant, executor, lawyer or other capacity)
DATED: 2017
Abridged Notice
Notice to Class Members
Federal Court of Australia
Class Action against Bank of Queensland & DDH Graham
The Federal Court has ordered that this notice be published for the information of any persons or companies, who were advised by Sherwin Financial Planners Pty Ltd (SFP) and/or other persons and companies associated with SFP to deposit funds into a Money Market Deposit Account (MMDA) with the Bank of Queensland Limited which was operated by DDH Graham Limited, for the purpose of investment.
Quinn Emanuel Urquhart & Sullivan (Quinn Emanuel) acts for Petersen Superannuation Fund Pty Ltd which has commenced a class action in the Federal Court of Australia seeking compensation for persons who lost money invested by Sherwin Financial Planners Pty Limited and/or Bradley Sherwin from the Bank of Queensland Limited and DDH Graham Limited. Those persons on whose behalf this proceeding has been commenced are referred to in this notice as "Class Members".
A class action can be commenced by one person on behalf of Class Members without the consent or involvement of the Class Members. However, Class Members can "opt out" of the proceedings.
If you wish to participate in any settlement in the proceedings then you must register by 14 December 2017. In order to register, please contact Quinn Emanuel at the details set out below.
If you do not want to remain as a Class Member then you must submit an "opt out" notice form to the NSW Registry of the Federal Court of Australia by 14 December 2017.
If you do not "opt out" but do not register you will not be entitled to receive any payment that may be made to registered Class Members as a result of the settlement of the proceedings.
Information on how to opt out, together with further information regarding your rights in relation to this class action can be obtained by contacting Quinn Emanuel on (02) 9146 3548 or email meaganbertolatti@quinnemanuel.com.
[7]
Introduction
1 This proceeding is a representative proceeding brought pursuant to Part IVA of the Federal Court of Australia Act 1976 (Cth) (the Act). It has been listed for final hearing commencing on 12 March 2018, with an estimated duration of three weeks.
2 The applicant, Petersen Superannuation Fund Pty Ltd (Petersen), alleges that the respondents are responsible for losses caused to it and the group members by alleged failures in the operation of a financial product known as a Money Market Deposit Account (MMDA) held by clients of Sherwin Financial Planners Pty Limited (SFP). The alleged failures relate to transactions said to have been carried out fraudulently on these accounts by SFP over a period of approximately nine years from 10 March 2004 to 24 January 2013. The second respondent, DDH Graham Ltd (DDH), administered these accounts as agent of the first respondent, Bank of Queensland Limited (BOQ).
3 The respondents' lay evidence and expert reports are to be filed and served by 1 December 2017. In the course of the hearing of the present application, I informed the parties that I will order that a mediation take place by 31 January 2018.
4 The parties agree that, pursuant to s 33X(1)(a) and s 33X(5) of the Act, an order should now be made giving notice to group members that they may opt out of the proceeding. The substantial disagreement between the parties has been whether, in light of the fact that a mediation will be ordered, a registration process should also be put in place. Further, there is disagreement between the parties as to the form that the notice to group members should take should I come to the view that a registration process should be put in place. Finally, there is disagreement as to how the notice to group members should be published and distributed.
5 At the hearing, I informed the parties of my conclusions on a number of the issues that have been raised and, in light of those conclusions, I made orders providing for a further draft opt out and registration notice to be prepared by the respondents and served on the applicant, with the applicant notifying the respondents of any further objections it might have on the form of the notice. I also informed the parties that I would publish written reasons for my conclusions.
[8]
Registration
6 The starting point is the respondents' contention that, as a mediation is in prospect, it is appropriate that a registration process be put in place.
7 A number of cases have recognised the appropriateness of such a step, even though the representative action regime under Part IVA of the Act is based on an opt out, and not opt in, model. The rationale for making an order of the kind sought by the respondents was recently discussed by the Full Court in Melbourne City Investments Pty Ltd v Treasury Wine Estates Limited [2017] FCAFC 98 at [72]-[75]:
72 The Commonwealth Parliament, in implementing a core recommendation of the Australian Law Reform Commission in its report Grouped Proceedings in the Federal Court, Report No 46 (Canberra, 1988) at [127], expressed a legislative intention to adopt an opt out rather than an opt in procedure: Second Reading Speech, Federal Court of Australia Amendment Bill 1991 (Cth), House of Representatives Parliamentary Debates, Hansard, 14 November 1991 p 3,175. It must be accepted that the requirement for class members to take active steps to "register" in order to share in a settlement of a class action undercuts to some extent the opt out rationale underpinning the Part IVA regime. In Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1; [2002] HCA 27 at [40] (Gaudron, Gummow and Hayne JJ) their Honours said:
Group members, however, need take no positive step in the prosecution of the proceeding to judgment to gain whatever benefit its prosecution may bring.
73 Class proceedings are intended to require little or no active involvement by class members and class members participate principally for the limited purpose of taking the benefit or suffering the burden of the findings made on the common questions: P Dawson Nominees Pty Ltd v Brookfield Multiplex Ltd (No 2) [2010] FCA 176 at [16] (P Dawson No 2) (Finkelstein J). As J Forrest J said in Thomas v Powercor Australia Ltd (Ruling No 1) [2010] VSC 489 (Thomas v Powercor No 1) at [30], "one of the consequences of the opt out model, as was clearly intended by the legislature, is the ability of group members to "sit back" and watch the proceeding unfold". There must be a good reason to exercise the discretion to make a class closure order which may operate to deny the benefits of a settlement to class members who do not opt out and who do not take the active step of registering: P Dawson No 2 at [17].
74 Having said this, if a class closure order operates to facilitate the desirable end of settlement, it may be reasonably adapted to the purpose of seeking or obtaining justice in the proceeding and therefore appropriate under s 33ZF of the Act. The courts have accepted on numerous occasions that, in order to facilitate settlement, it is appropriate to make orders to require class members to come forward and register in order to indicate a willingness to participate in a future settlement, and to make orders that class members be bound into the settlement but barred from sharing in its proceeds unless they register: see for example, Matthews v SPI Electricity & SPI Electricity Pty Ltd v Utility Services Corporation Ltd (Ruling No 13) (2013) 39 VR 255; [2013] VSC 17 at [22]-[80] (Matthews v SPI No 13) (J Forrest J) and the authorities there referred to; Farey v National Australia Bank [2014] FCA 1242 at [11]-[16] (Jacobson J); Inabu Pty Ltd v Leighton Holdings Pty Ltd [2014] FCA 622 at [17]-[22] (Jacobson J); Newstart 123 Pty Ltd v Billabong International Ltd [2016] FCA 1194 at [67]-[68] (Beach J). An important aspect of the utility of a class proceeding is that they may achieve finality not only for class members but also for the respondent.
75 The rationale behind such class closure orders is that a requirement for class members to register their claims will facilitate settlement, because it allows both sides to have a better understanding of the total quantum of class members' claims, permits the settlement amount to be capped by reference to the number of class members, and assists in achieving finality (to the extent the Part IVA regime permits): see Grave D, Adams K and Betts J, Class Actions in Australia (2nd ed, Lawbook Co, 2012) at [14.410]. A class closure order that precludes class members, who neither opt out nor register, from sharing in a subsequent settlement may facilitate settlement, and therefore be reasonably adapted to the purpose of seeking or obtaining justice in the proceeding.
8 Petersen opposed an order providing for registration, and thus closing the class of group members for the purposes of settlement. It argued that such an order was neither necessary nor appropriate because, unlike other cases where such an order has been made, the respondents in the present case know, or can ascertain, the identity of group members. This is because DDH has the application forms signed by the account holders which specify that the financial planner was Sherwin or Sherwin Financial Planners.
9 Petersen also argued that the respondents know, or can ascertain, the transactions conducted on the relevant accounts and can thereby inform themselves of the likely losses suffered by the group members. Thus, it said, the requirement for certainty which facilitates settlements is not present, or is not present to the same degree, in the present case as it has been in other cases.
10 Petersen also expressed concern that the requirement for registration within a relatively short period of time has the potential to cause unfairness to group members who, Petersen argues, are likely to include elderly superannuants who would wish to participate in a mediation but, due to their age and financial position, would be unable to particularise and quantify their claims by a deadline date as early as, say, the end of November 2017.
11 Further, Petersen argued that the requirement for registration may actually be a barrier to settlement because unregistered group members would be permitted to bring subsequent proceedings if the registered group members reach a settlement: Money Max Int Pty Ltd v QBE Insurance Group Ltd [2016] FCAFC 148; (2016) 245 FCR 191 at [195].
12 I am not persuaded by these arguments. It is appropriate that a registration process be put in place.
13 Whilst I would accept that, in the present case, the respondents are in a position to know with reasonable precision the identity of the group members, they are not in a position to know with relative certainty the likely amount of the losses which those persons might claim they have suffered by reason of the conduct alleged. One impediment to the respondents gaining knowledge of that fact from the records they hold is that they will not know with reasonable or appropriate confidence the transactions which group members will allege were unauthorised transactions for which the respondents should be held liable. The respondents submitted, and I accept, that it should really be for the group members to provide the assessment of their losses rather than for the respondents to attempt to second-guess what the group members claims will be in that regard.
14 Relatedly, I do not accept that it would be onerous for group members to quantify their claims within a reasonable period of time. I should think that the group members would have a clear understanding of what they believe they have lost by unauthorised transactions having been carried out on their accounts. Some group members might be "elderly", in the sense that they are retirees - the sense in which the applicant seemed to use this term. I do not accept that the task of quantifying and notifying the amount of their claims would place a disproportionate burden on these group members.
15 Finally, the applicant did not elaborate on why, in this case, a requirement for registration would be a barrier to settlement. It is certainly not apparent to me why that would be so.
[9]
The form of the opt out notice
16 There was a substantial debate at the hearing on the form of the notice. The applicant argued that the notice proposed by the respondents was unclear and that its requirements were onerous and unreasonable, particularly in circumstances where the notice required group members to verify the information provided by means of a statutory declaration. One of the conclusions I expressed at the hearing was that, in the circumstances of this matter, there should be no requirement for verification by statutory declaration.
17 Petersen drew attention to various other sections of the respondents' draft notice which it said raised difficulties. These were addressed by the respondents who, in the course of argument, advanced certain revisions to meet the concerns that had been raised. Petersen correctly pointed out that it was not appropriate to consider these revisions "on the run". It was for this reason that I made an order requiring the respondents to provide a further draft of the notice they proposed for Petersen to consider. This has now been done. The parties have been able to reach agreement not only on the form of the opt out and registration notice, but also on the form of an abridged version of the notice which is to be placed in certain newspapers. I have raised some amendments with the parties, to which no objection has been voiced.
[10]
publication and distribution of the notice
18 Two issues were raised in this regard.
19 The first issue was whether BOQ and DDH should be required to publish the abridged form of notice on their respective websites. Petersen sought such a requirement. The respondents objected to it on the basis that it was inappropriate to require them to, in effect, advertise unproven allegations which could only be injurious to their commercial interests. I accept the respondents' submission.
20 The second issue was whether the opt out and registration notice should be distributed by Petersen or by a third party mailing house. DDH has expressed significant concerns about the propriety of disclosing confidential information concerning its account-holders to Petersen and its solicitors. DDH said, with BOQ's support, that a mail-out should take place on a basis which does not involve Petersen or its solicitors having access to data which is the subject of legal privacy obligations.
21 Petersen argued that there is no reason why it should not have access to this information. It also argued that using a third party mailing house to distribute the notices would place an unwarranted and additional cost burden on it. Petersen suggested that it was necessary for there to be some insight and visibility in relation to the addresses used for the mail-out.
22 I accept that, in the circumstances of this matter, it is appropriate to use a third-party mailing house for the distribution of the notices. Petersen's concerns with respect to the addresses to be used for the distribution of the notices can be accommodated by giving Petersen's lawyers access, on a confidential basis, to the list(s) to be used for mailing the notices.
[11]
Petersen's tender bundle
23 On 22 May 2017, I made an order that, with some exceptions, Petersen identify each document it intends to rely on at the final hearing and to provide the respondents with copies of those documents. The respondents now seek an order to the effect that, subject to the grant of leave, the documents presently identified and provided by Petersen stand as the only documents it can rely on in its case in chief.
24 I am not persuaded that this order should be made, at least at the present time. Petersen has pointed out that BOQ has not, as yet, completed giving discovery, the respondents have not filed their affidavit evidence, and the final hearing is still some months away. Whilst the respondents have suggested that the addition of documents to Petersen's present list can be accommodated by the leave requirement they propose, I am not satisfied that the time has arrived to impose any embargo on Petersen in this regard.
[12]
Orders
25 The parties have been able to agree on the orders that should be made to put in place the opt out and registration process, and to provide for the publication and distribution of notices in that regard. They have also been able to agree on the orders that should be made in relation to other procedural matters. Subject to some matters I have raised with the parties, I am prepared to make those orders.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.