Class closure - participants still need to register or miss out
With some institutional investors leaving things late before participating, this ruling – and the class closure rulings in the QBE shareholder class action – demonstrates that participants will be prevented from sharing in any eventual settlement if they don’t register in accordance with the court orders.
This is a securities class action arising out of guidance given by the respondent (and later withdrawn) as to its expected profit for the 2017 financial year. Shortly after the proceeding was commenced (and before any defence was filed) both parties jointly sought, in aid of an early mediation, orders for limited discovery, opt out and a 'soft' class closure. After some amendments were made to the proposed orders (at the request of the Court), Moshinsky J made the proposed orders, and in this judgment gave brief reasons for doing so.
The orders provide, in effect, that any class members who do not register prior to the registration deadline will not be entitled to participate in any settlement reached at the forthcoming mediation, or any settlement reached within six months after that mediation, but will still be entitled to participate in any settlement reached at a later time, or in any judgment in the proceeding. His Honour was satisfied that he had power to make such an order, consistent with the decision of the Full Court in Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd (2017) 252 FCR 1;  FCAFC 98.
The concerns which his Honour had with the original form of the proposed orders included:
- that the period of four weeks between distribution of notices to class members and the deadline for registration / opt out was too short – in the final version of the orders that period was increased to two months
- that the notice to class members did not sufficiently set out the consequences of a class member 'doing nothing' (i.e. neither opting out nor registering before the deadline) – accordingly, amendments were made to the notice in the final version of the orders.
Fisher (Trustee of the Tramik Super Fund Trust) v Vocus Group Ltd  FCA 712
- Federal Court of Australia, Moshinsky J, 21 May 2019
- Applicant's Solicitors: Slater & Gordon
- Respondent's Solicitors: Herbert Smith Freehills
- Applicant's Funder: Investor Claim Partners Pty Ltd / ICP Capital Pty Ltd / Woodsford Litigation Funding Ltd
Read more on Austlii: Fisher (Trustee of the Tramik Super Fund Trust) v Vocus Group Ltd  FCA 712
Andrew WatsonNational Head of Class Actions, Class actions, Melbourne
"I'm an experienced litigator in class actions, particularly for shareholders who have been victims of corporate misconduct."
Ben SladeState Managing Principal, Office leader, Class actions, Sydney
"I am driven to give a voice to those who would otherwise have to suffer because those who have done them wrong are all too powerful."
Brooke DellavedovaPrincipal Lawyer, Class actions, Melbourne
"I am passionate about getting the best possible outcome for my clients and class actions provides an excellent opportunity for claimants to band together to bring claims they might not be able to bring on their own."
Kimi NishimuraPrincipal Lawyer, Class actions, Melbourne
"I'm committed to fighting for the rights of victims of corporate misconduct as well as pursuing compensation on behalf of my clients."
Rebecca GilsenanPrincipal Lawyer, Class actions, Sydney
"I have extensive experience in running complex and novel litigation, including class actions in the areas of price fixing, failed investment schemes, product liability and securities."
Miranda NagyPrincipal Lawyer, Class actions, Sydney
"I have a strong conviction that the community should be able to expect our governments and the companies we deal with to comply with the law."
Julian SchimmelPrincipal Lawyer, Class actions, Sydney
"Class actions are a unique legal mechanism that have helped hundreds of thousands of people receive compensation after mistreatment at the hands of powerful companies, and it’s gratifying to help people get access to justice when otherwise it would’ve been difficult for them."
Vavaa MawuliPrincipal, Class actions, Brisbane
"The most rewarding thing about my work is the change in scale of what we are able to accomplish."