Australia: Class closure: facilitating the desirable end of settlement

The latest decision in the Melbourne City Investments Pty Ltd / Treasury Wine Estates saga explores when it is appropriate for a Court to make "class closure" orders in class actions where it can facilitate the desirable end of settlement.

When Parliament introduced an opt-out class action regime, it did so for the dual purpose of providing access to justice and to provide an efficient and effective procedure to deal with multiple claims. The Courts quickly recognised that a common if not inevitable feature of opt-out class actions was that the defendant will be faced with uncertainty regarding the quantum of class members' claims.

Uncertainty about the quantum of the class action claims in turn generates uncertainty about settlement a defendant faces the challenge of weighing up the strength (or otherwise) of their position, and the likely cost of resolving the class action.

A practice of "closing the class" therefore developed. Class closure orders are a vehicle through which some certainty and scope can be provided in an uncertain world. They occur when the Court establishes a process for class members to identify themselves (usually through registration), generally for the purposes of participation in settlement discussions. Class members who do not register their interests are not able to participate in the fruits of any settlement.

Over the years there had been some divergence in judicial practice. In Melbourne City Investments Pty Ltd v Treasury Wine Estates Limited [2017] FCAFC 98 (MCI v TWE) the Full Court took the opportunity to provide some guidance on class closure issues (even though it was no longer necessary to deal with the arguments because the applicant had abandoned its contentions on the issue).

MCI v TWE

In mid-2014, Mr Brian Jones commenced a shareholder class action against TWE. During an opt-out hearing, TWE sought class closure orders which would close the class for all purposes. The practical effect of such an order would be that the class members who neither opted out nor registered were precluded from any settlement and, if settlement was not achieved, any subsequent favourable judgment.

The primary judge did not make the order. Rather, a class closure order was made which precluded group members who neither opted out nor registered from sharing in any settlement, but expressly preserved their rights to share in any subsequent judgment.

MCI lodged an appeal against the primary judge's findings in respect of the opt-out application, including that the primary judge's requirement for class members to register their claim in order to continue to participate in the proceedings, prior to settlement or judgment and before the terms and consequences of settlement were known, was an error of law and had the effect of improperly excluding them.

The Full Court explains how class closure works

The Full Court upheld the primary judge's class closure order. In doing so, the Full Court made a number of observations about class closure more generally.

First, 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.

Second, 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 proceedings and therefore appropriate under section 33ZF of the Act. In that regard, an important aspect of the utility of a class proceedings is that they may achieve finality not only for class members but also for the respondent.

Third, the Court should be cautious before making a class closure order that, if settlement is not achieved, operates to lock class members out of their entitlement to make claim and share in a judgment. While the facilitation of settlement is a good reason for a class closure order, an order to shut out class members who do not respond to an arbitrary deadline is not.

Fourth, the Court should usually not exercise the discretion to make a class closure order based merely on a respondent's assertion that it is unwilling to discuss settlement unless such an order is made.

Finally, whether a class closure order is appropriate in a particular proceeding is a question of balance and judicial intuition. The interests of the class as a whole, the surrounding circumstances, the stage of the proceedings, the attitude of the party, the complexity of the case and likely duration of the proceedings were all identified as potentially relevant factors.

For example, in MCI v TWE, the class closure order was appropriate in circumstances where the proceedings were at a stage where prospects could be reasonably assessed and the solicitors for the applicants were experienced and able to assess whether the closure was in the interests of the class members. However, in Winterford v Pfizer Pty Ltd [2012] FCA 1199, class closure orders were not appropriate in circumstances were pleadings remained open, common questions were not yet settled and no settlement discussions had begun.

Moving forward with more certainty

Parties to class actions now have points of guidance when determining when a class closure order is appropriate, as well as a greater understanding of the Court's attitude towards the protection of class member rights to the fruits of judgment. It will not be good enough for parties to class actions to ask the Court to make class closure orders merely because the respondents state that they are unwilling to contemplate settlement unless a class closure order is made. It will be necessary to convince the Court that it is in the interests of the class as a whole, especially if the orders will facilitate the desirable end of settlement.

RELATED KNOWLEDGE

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.