Lopez v Star World Enterprises Pty Ltd [1999] FCA 104

FEDERAL COURT OF AUSTRALIA

Lopez v Star World Enterprises Pty Ltd [1999] FCA 104 PRACTICE & PROCEDURE – representative proceeding – settlement of proceeding – approval of settlement – group members including persons under disability – factors taken into account in granting approval

Federal Court of Australia Act 1976 (Cth) ss 33J and 33V

Corporations Law s 562

RODOLFO LOPEZ V STAR WORLD ENTERPRISES PTY LTD (IN LIQ)

& ORS

NO. VG 133 OF 1997

JUDGE: FINKELSTEIN J

PLACE: MELBOURNE

DATE: 28 JANUARY 1999

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 133 of 1997

BETWEEN: RODOLFO LOPEZ

Applicant

AND: STAR WORLD ENTERPRISES PTY LTD (IN LIQ),

VAN THONG CHIEM AND NGOC LAN CHIEM

Respondents

BETWEEN: STAR WORLD ENTERPRISES PTY LTD (IN LIQ)

Cross-claimant

AND: AUSTRALIAN UNITY GENERAL INSURANCE LTD

Cross-respondent

JUDGE: FINKELSTEIN J

DATE OF ORDER: 28 JANUARY 1999

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The settlement agreements dated 28 January 1999 and the settlement scheme (the settlement agreement) tendered by consent and to be retained on the court file are approved by the court. 2. On the applicant's claim against the respondents and on behalf of the applicant and the other group members who purchased, consumed or were cross-infected by products manufactured and/or sold by the firstnamed respondent between January and March 1997 (group members) and have thereby suffered damage, and on the cross-claimant's claim against the cross-respondent there will be judgment as follows: (a) In the sum of $750,000 (the settlement fund) with $700,000 costs; (b) The settlement fund be dealt with in accordance with the terms of the settlement agreements, subject to the enforceability and validity of their provisions; (c) The settlement fund be distributed in accordance with the terms of the Settlement Scheme. 3. The date for opting out pursuant to s 33J of the Federal Court of Australia Act 1976 (the Act) is extended to 15 March 1999. 4. That Slater & Gordon file with the court by 15 March 1999 notices of opt out on behalf of group members who give notice in writing to them by 11 March 1999 of their intention to opt out, and who do not subsequently rescind that notice prior to 13 March 1999. 5. This judgment binds all group members other than those who have: 5.1 on or before 15 March 1999 (whether or not before the date of this order) opted out in accordance with s 33J of the Act; and 5.2 not subsequently to so opting out "opted in" in accordance with the terms of the Settlement Scheme. 6. The applicant's solicitors shall cause to be published in the Herald-Sun and Chieu Duong newspapers a notice in the form of Schedule A to this order, on at least one occasion on or before 10 February 1999. 7. The cross-claim is dismissed. 8. The cross-respondent to pay the cross-claimants costs in accordance with the settlement agreement. 9. The cross-respondent to pay the second and thirdnamed respondents' expenses in accordance with the settlement agreement. 10. There be liberty to apply on reasonable notice, including liberty to any group member to apply for orders challenging the validity or enforceability of the terms of the settlement agreement.