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This was a short judgment in which Lee J resolved differences between the parties as to the terms of an opt out and registration notice to be distributed to class members. Both parties were agreed that the notice should include a form of ‘soft’ class closure in accordance with the Full Court’s decision in Parkin v Boral Ltd (2022) 291 FCR 116; [2022] FCAFC 47. The difference between the parties related to the time at which the ‘soft’ class closure should expire, and the class ‘reopen’. The applicants contended that it should expire at the end of July 2024 (with a mediation scheduled to occur no later than 31 May 2024). The respondent contended that it should continue up until final judgment, or alternatively four weeks after the conclusion of the initial trial.

His Honour favoured the applicant’s position and said:

[12] The mediation date in this case has been selected by the parties as being an appropriate juncture in the life of the class action for structured and supervised settlement discussions to take place. Everything that can be done should be done to assist in facilitating the mediation at this time and to focus the minds of the parties on the desirability of settling sooner rather than later (if it is possible to reach a settlement capable of approval by the Court).

[13] Experience demonstrates it is far easier for a class action to resolve at a mediation if there is some certainty as to the likely loss alleged to have been suffered by group members. Of course, there may be cases where it is appropriate to progress the proceeding without registration, particularly in the light of opposition by one or other party. It is ultimately a matter of discretion. But where, as here, both parties are represented by experienced practitioners and registration orders are sought jointly to facilitate productive settlement discussions, the practice has been for such orders to be made. The method and mode of communication is clear, and the notice ought to be approved.

[14] As to the narrow difference, as noted above, to the extent possible, the parties should focus on settlement now and not later. If settlement cannot be achieved in a reasonable period following the mediation, there is no reason why the class ought not be “reopened”. I prefer a short period of so-called “soft closure”.

[15] Accordingly, I will make the orders proposed by the Applicant.

Parkin v Boral Ltd (Opt Out and Registration Notices) [2023] FCA 1300

Federal Court of Australia, Lee J,
24 October 2023

Applicants’ Solicitors: Maurice Blackburn
Respondent’s Solicitors: Herbert Smith Freehills
Applicants’ Funder: N/A

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