Getswift shareholder class action debates timing of opt out

Securities class action – Timing and form of opt out notices

The history of this matter is well known. At first instance, Lee J ordered that this proceeding continue, and stayed two competing proceedings. An application for leave to appeal was brought from that decision and, pending the outcome of that application, his Honour determined that the opt out process in this proceeding should be deferred. Although the Full Court granted leave to appeal, it ultimately dismissed the appeal. The unsuccessful appellants have now sought special leave to appeal to the High Court.

In this judgment, his Honour considered, inter alia, whether the opt out process in this proceeding should be further deferred, pending the outcome of the application for special leave to appeal. The parties to this proceeding opposed that course; the applicant for special leave pressed that course. Ultimately, his Honour considered that it was not appropriate to continue to defer the opt out process for several reasons, including:

  • The overwhelming likelihood is that the proceeding will settle, rather than proceed to judgment, and although it is possible for a class action to settle prior to opt out, that is not normally the case – thus, commencing the opt out process immediately will facilitate an early mediation, and thus increase the prospects of an early settlement of the proceeding before significant further legal costs are incurred.
  • The opt out notice will, in any event, inform class members of the existence of the other (stayed) proceedings and the extant application for special leave to appeal, and if the outcome in the High Court is that the stay is lifted, and the other proceedings are re-enlivened, class members can be given a further opportunity to opt out at that point in order to participate in one of those other proceedings.

Case details

Webb v GetSwift Ltd (No 4) [2019] FCA 233

  • Federal Court of Australia, Lee J, 7 February 2019
  • Applicant's Solicitors: Phi Finney McDonald
  • Respondent's Solicitors: Quinn Emanuel Urquhart & Sullivan
  • Intervener's Solicitors: Squire Patton Boggs; Applicant’s Funder: Therium Capital Management Ltd

Read more on Austlii: Webb v GetSwift Ltd (No 4) [2019] FCA 233


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