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This decision arises in the class action against CIMIC, after an in-principle settlement was agreed between parties in December 2019.
This decision arises in the class action against CIMIC. In December 2019, an in-principle settlement was agreed between the parties. In this judgment Jagot J was asked to approve the proposed settlement.
Her Honour approved the settlement and whilst her reasons are brief, they provide relevant consideration of the reach of the New South Wales Court of Appeal’s decision in Haselhurst v Toyota Motor Corporation Australia Ltd  NSWCA 66 (Haselhurst) regarding class closure orders.
The orders sought under s 33V of the Federal Court of Australia Act 1976 (Cth) (FCAA) approving the settlement would have the effect of closing the class to only those class members who had registered to participate in the settlement (a process notified to class members in the settlement notice).
Her Honour accepted the applicant’s submission that the decision in Haselhurst, which concerned the power to make class closure orders under s 183 of the Civil Procedure Act 2005 (NSW) – the equivalent of s 33ZF of the FCAA – was distinguishable to an order made under s 33V of the FCAA that would extinguish the rights of unregistered class members. Her Honour noted (at ):
I accept the submission for the applicant that unless some form of extinguishment occurs, the resolution of the proceeding does not, in fact, resolve the matter insofar as the respondent is concerned because group members who remained group members and did not opt out could later assert that their claims had not been resolved and advance those claims against the respondent.
Her Honour referred to the decision of Beach J in Newstart 123 Pty Ltd v Billabong International Ltd (2016) 343 ALR 662;  FCA 1194 (Billabong) in which his Honour (at ) said that such orders were in the interests of class members as a whole because a respondent would not otherwise agree to a settlement and that further, such orders provide finality and certainty for the purposes of settlement distribution.
Justice Jagot commented that the situation in the CIMIC proceeding was analogous to that in Billabong and that the evidence from the respondent demonstrated that it would not have settled the proceeding if it did not resolve the claims of all class members, registered and unregistered. Her Honour commented (at ):
I accept the submission for the applicant that this is a conventional approach to settlement resolution. I consider that given the history of the notifications in this matter and the opportunities that have been given to class members to either register or opt out, there would be no unfairness in making the barring order that the applicant now seeks and which the respondent has made clear was a reason why it entered into the settlement.
Inabu Pty Ltd as trustee for the Alidas Superannuation Fund v CIMIC Group Ltd  FCA 510
- Federal Court of Australia, Jagot J, 28 April 2020
- Applicant's Solicitors: Maurice Blackburn
- Respondent's Solicitors: Allens
- Applicant's Funder: N/A
Read more about this case on Austlii: Inabu Pty Ltd as trustee for the Alidas Superannuation Fund v CIMIC Group Ltd  FCA 510
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