Parkin v Boral Limited (Class Closure) [2022] FCAFC 47 (28 March 2022) (Murphy, Beach and Lee JJ)


Catchwords:


REPRESENTATIVE PROCEEDINGS – class closure orders – two questions reserved for determination – first question as to whether Court has power under s 33ZF of the Federal Court of Australia Act 1976 (Cth) to order that unless group members register or opt out by a certain date they will remain a group member but will not be able to seek any benefit pursuant to any settlement (subject to Court approval) that occurs before final judgment – second question as to whether Court has power under s 33X(5) to order that group members register or opt out by a certain date and that group members be given notice that, if a settlement is reached, the applicant then intends to seek an order that those group members who neither opted out nor registered will remain a group member but will not be able to seek any benefit pursuant to any settlement (subject to Court approval) that occurs before final judgment – consideration of the origins of class closure orders – distinction between “hard closure” and “soft closure” orders – consideration of the reasoning of the Court of Appeal of New South Wales in Haselhurst v Toyota [2020] [2020] NSWCA 66; 101 NSWLR 890 and Wigmans v AMP Ltd [2020] NSWCA 104; 102 NSWLR 199 – fact specific inquiry – no extinguishment of group member rights upon the making of an order in terms of the second question – order in terms of second question merely gives notice that at the time of settlement the Court may exercise its powers to distribute any settlement to those group members who have registered their interest – settlement still subject to court approval pursuant to s 33V – claims of group members determined at the time of settlement approval or judgment and the making of s 33ZB order – order within power