Gibson v Malaysian Airline System Berhad (No 3) [2017] FCA 1164

FEDERAL COURT OF AUSTRALIA

Gibson v Malaysian Airline System Berhad (No 3) [2017] FCA 1164 File number: NSD 1067 of 2016

Judge: PERRAM J

Date of judgment: 28 September 2017

Catchwords: PRACTICE AND PROCEDURE – representative proceedings – service of Opt Out Notice – construction of term 'personal representative' in Order made by Court – whether 'personal representative' means executor or administrator of deceased passenger's estate or can also include legal representative

Legislation: Federal Court of Australia Act 1976 (Cth) s 33X(1)(a)

Cases cited: Earglow Pty Limited v Newcrest Mining Limited [2016] FCA 1433 Wootton v State of Queensland (No 7) [2017] FCA 406

Date of hearing: 26 September 2017

Registry: New South Wales

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: Commercial Contracts, Banking, Finance and Insurance

Category: Catchwords

Number of paragraphs: 13

Counsel for the Applicant: Mr J Rowe

Solicitor for the Applicant: LHD Lawyers

Counsel for the Respondent: Ms C Gleeson

Solicitor for the Respondent: Clyde & Co

ORDERS NSD 1067 of 2016

BETWEEN: CASSANDRA JANE GIBSON Applicant

AND: MALAYSIAN AIRLINE SYSTEM BERHAD Respondent

JUDGE: PERRAM J DATE OF ORDER: 28 SEPTEMBER 2017

THE COURT ORDERS THAT:

1. The matter be stood over for a further case management hearing on 3 October 2017 at 9.30 am. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRAM J: 1 On 5 September 2017, the Court made orders for the sending out of opt out notices. Order 1 was as follows: '1. The Respondent provide to the Applicant by 12 September 2017 particulars of the personal representative of each passenger killed on Malaysian Airline Flight MH 17 ("MH17") on 17 July 2014, including the name, postal address, telephone contact number/s and email address of each personal representative to the extent that information is known to the Respondent.' (emphasis added) 2 Two issues have arisen. First, does the expression 'personal representative' in the Order only refer to a person in a position such as an executor, or is it a more general concept encompassing the lawyers who are acting for the families and/or estates of the deceased passengers. Secondly, if it does only mean a person such as an executor, should the Court nevertheless permit the opt out notice process to go forward by allowing the Respondent, notwithstanding the terms of Order 1, to provide instead the details of the relevant lawyer acting in respect of each passenger rather than the details of their personal representative. 3 On the issue of construction, I have little doubt that 'personal representative' was intended to convey the idea of the person representing the estate or affairs of a deceased passenger. It is not to the point that there may not necessarily be such a person under some foreign legal systems. The meaning of the Order is, with respect, clear. 4 The substantial question then is whether the Court should relieve the Respondent from the effect of Order 1. 5 An affidavit was sworn by one of the Sydney-based lawyers from the Singapore-based law firm responsible for the world-wide management of the claims arising out of the MH17 disaster on behalf of the airline (and its underwriters), a Mr Freeman. He made these points (amongst others): of the 283 passengers on board MH17 there have been 245 settlements (at least in principle); of the remainder, approximately 26 involve connections with Australia; of the 10 different nationalities involved, not every legal system recognises a concept which corresponds to that of a personal legal representative under Australian law. Mr Freeman suggested, without it seems to me definitively committing himself, to the idea that this may be so in relation to some civilian legal systems; the Respondent had offered to provide details of the lawyers acting for the various claimants as a practical solution; the Respondent did hold some information about the persons responsible for administering the estates of the deceased passengers but that 'information is not captured in an easily accessible form'; and it would be necessary to contact the lawyers acting for the Respondent in relation to each claim to complete the picture. This would take time and be resource intensive. There was also no guarantee that it would result in the production of all the information which was sought. 6 Section 33X(1)(a) of the Federal Court of Australia Act 1976 (Cth) provides '33X Notice to be given of certain matters (1) Notice must be given to group members of the following matters in relation to a representative proceeding: (a) the commencement of the proceeding and the right of the group members to opt out of the proceeding before a specified date, being the date fixed under subsection 33J(1); …' 7 The purpose of s 33X is to provide notice to the group members using the most efficient and effective method: Earglow Pty Limited v Newcrest Mining Limited [2016] FCA 1433 at [47] per Murphy J. It is therefore open to the Court to order that the opt out notice be given by any particular method which serves that end. In some cases this may not necessarily involve any notice being physically sent to each individual group member. Indeed, sometimes this will not be possible at all. It is for that reason, for example, that newspaper advertisements have been held sufficient: see, for example, Wootton v State of Queensland (No 7) [2017] FCA 406 at [7] per Mortimer J. 8 Here the choice is between: (a) a more expensive and perhaps not entirely perfect process, which brings the class action to the attention of each actual personal representative (to the extent that such a person exists); and (b) a faster process which brings the claim to the attention of a law firm pursuing similar rights who might ordinarily be expected to know to whom to forward such a notice. 9 On its face, (b) appears to be an easier approach unless one suspects that the lawyers in question will not pass the notice on to the relevant personal representative or that, if they pass it on, they may advise their client to opt out given their own retainer. On this view, the arrival of an opt out notice in a class action may be viewed as an unwelcome form of competition. 10 I think there may be something in this suspicion, but the Court's purpose under s 33X(1)(a) is not to ensure that group members receive notice of the class action only in a positive and welcoming environment. It is rather that they receive adequate notice. Despite that, I remain concerned that not every notice that finds its way to one of these attorneys will necessarily find its way to the corresponding group member. 11 On the other hand, I do not think the difficulties there may be in identifying the relevant personal representatives (where they exist) are perhaps quite as onerous as Mr Freeman has sought to suggest. It is problematic, for example, to imagine that the Respondent would not seek to bind the passengers' estates to each of the 245 settlements it has reached so far. For that reason, I remain, to a degree, sceptical that the details of the relevant personal representatives are likely to be quite as elusive as Mr Freeman seemed to hint at. In any event, if there is a degree of inconvenience involved it will just have to be endured. 12 In sum: I do not think that the expression 'personal representative' in Order 1 means anything other than the representative of an estate of a passenger howsoever described; further, whilst the matter is finely balanced, I do not think it appropriate to vary that order in the way suggested by the Respondent. The Respondent will have to provide the details of the personal representatives as it was ordered to do. 13 There will be a case management hearing on Tuesday, 3 October 2016. At that time, a revised timetable relating to the opt out notices will be fixed. I will hear the parties on costs at that hearing if they wish. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.