Federal Court of Australia
Federal Court of Australia
Asirifi-Otchere v Swann Insurance (Aust) Pty Ltd (No 4) [2021] FCA 459 File number: NSD 544 of 2019
Judgment of: LEE J
Date of judgment: 23 April 2021
Catchwords: REPRESENTATIVE PROCEEDINGS – open class consumer class action – half a million group members – settlement approved – applications for late opt out – consideration of the finality of settlements achieved by s 33ZB orders – superficial attraction of making orders pursuant to s 33ZF contrary to a principled approach to dealing with settlements – regime must work not only for the benefit of the applicant and group members but also for the respondent – importance of certainty – consideration of s 33KA of the Supreme Court Act 1986 (Vic) – no power to make orders allowing for late opt out under Pt IVA – where group member evinced an intention to opt out before the settlement approval hearing – whether orders could be made pursuant to the slip rule – consideration of the slip rule – question of whether group member could opt out a matter of independent discretion – slip rule not engaged where there is any room for debate as to the outcome of the exercise of discretion
Legislation: Federal Court of Australia Act 1976 (Cth) ss 33E, 33V, 33ZB Supreme Court Act 1986 (Vic) s 33KA Federal Court Rules 2011 (Cth) r 39.05
Cases cited: Asirifi-Otchere v Swann Insurance (Aust) Pty Ltd (No 3) [2020] FCA 1885 BMW Australia Ltd v Brewster [2019] HCA 45; (2019) 374 ALR 627 Construction, Forestry, Mining and Energy Union v Mammoet Australia Pty Ltd (No 2) [2012] FCA 1404; (2012) 209 FCR 123 Dillon v RBS Group (Australia) Pty Ltd [2017] FCA 896; (2017) 252 FCR 150 Dyczynski v Gibson [2020] FCAFC 120; (2020) 381 ALR 1 Endresz v Commonwealth [2019] FCAFC 197; (2019) 273 FCR 286 Flint v Richard Busuttil & Company Pty Ltd [2013] FCAFC 131; (2013) 216 FCR 375 L Shaddock & Associates Pty Ltd v Council of the City of Parramatta (No 2) (1982) 151 CLR 590 Luck v University of Southern Queensland [2018] FCAFC 102; (2018) 265 FCR 304 Murray v Great Southern Managers Australia Ltd (Receivers and Mangers Appointed) (in liq) [2018] VSC 416
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