Parkin v Boral Limited (Class Closure)

• Jurisdiction: Australia Federal only
• Court: Full Federal Court (Australia)
• Judgment Date: 28 March 2022
• Neutral Citation: [2022] FCAFC 47
• Date: 28 March 2022

Federal Court of Australia

Parkin v Boral Limited (Class Closure) [2022] FCAFC 47

File number:	NSD 602 of 2020
Judgment of:	MURPHY, BEACH AND LEE JJ
Date of judgment:	28 March 2022
Catchwords:	REPRESENTATIVE PROCEEDINGS – class closure orders – two questions reserved for determination – first question as to whether Court has power under s 33ZF of the Federal Court of Australia Act 1976 (Cth) to order that unless group members register or opt out by a certain date they will remain a group member but will not be able to seek any benefit pursuant to any settlement (subject to Court approval) that occurs before final judgment – second question as to whether Court has power under s 33X(5) to order that group members register or opt out by a certain date and that group members be given notice that, if a settlement is reached, the applicant then intends to seek an order that those group members who neither opted out nor registered will remain a group member but will not be able to seek any benefit pursuant to any settlement (subject to Court approval) that occurs before final judgment – consideration of the origins of class closure orders – distinction between “hard closure” and “soft closure” orders – consideration of the reasoning of the Court of Appeal of New South Wales in Haselhurst v Toyota [2020] [2020] NSWCA 66; 101 NSWLR 890 and Wigmans v AMP Ltd [2020] NSWCA 104; 102 NSWLR 199 – fact specific inquiry – no extinguishment of group member rights upon the making of an order in terms of the second question – order in terms of second question merely gives notice that at the time of settlement the Court may exercise its powers to distribute any settlement to those group members who have registered their interest – settlement still subject to court approval pursuant to s 33V – claims of group members determined at the time of settlement approval or judgment and the making of s 33ZB order – order within power
Legislation:	Federal Court of Australia Act 1976 (Cth) Pts IVA, VB; ss 22, 25, 33C, 33E, 33J, 33H, 33K, 33V, 33X, 33Y, 33X, 33ZB, 33ZF Federal Court Rules 2011 (Cth) r 30.01 Civil Procedure Act 2005 (NSW) Pt 10; s 183 Supreme Court Act 1986 (Vic) Pt 4A, ss 33ZB, 33ZF, 33ZG
Cases cited:	Abbott v Zoetis Australia Pty Ltd (No 2) [2019] FCA 462; 369 ALR 512 Asirifi-Otchere v Swann Insurance (Aust) Pty Ltd (No 3) [2020] FCA 1885; 385 ALR 625 BHP Group Ltd v Impiombato [2021] FCAFC 93; 151 ACSR 634 Blairgowrie Trading Ltd v Allco Finance Group Ltd (in liq) [2015] FCA 811; 325 ALR 539 BMW Australia Ltd v Brewster [2019] HCA 45; 269 CLR 574 CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; 239 CLR 390 Capic v Ford Motor Company (No 2) [2016] FCA 1178 Cantor v Audi Australia Pty Ltd (No 5) [2020] FCA 637 Court v Spotless Group Holdings Ltd [2020] FCA 1730 Dyczynski v Gibson [2020] FCAFC 120; 280 FCR 583 Earglow Pty Ltd v Newcrest Mining Ltd [2015] FCA 238; 230 FCR 469 Fisher (as Trustee for the Tramik Super Fund Trust) v Vocus Group Ltd (No 2) [2020] FCA 579 Furnell v Shahin Enterprises Pty Ltd [2021] FCA 73; 386 ALR 245 Gill v Ethicon Sàrl (No 2) [2019] FCA 177; 134 ACSR 649 Haselhurst v Toyota Motor Corporation Australia Ltd t/as Toyota Australia [2020] NSWCA 66; 101 NSWLR 890 Hili v The Queen [2010] HCA 45; 242 CLR 520 Inabu Pty Ltd as Trustee for the Alidas Superannuation Fund v CIMIC Group Ltd [2020] FCA 510 Jones v Treasury Wine Estates Ltd (No 2) [2017] FCA 296 Kelly v Willmott Forests (No 4) [2016] FCA 323; 335 ALR 439 Lenthall v Westpac Banking Corp (No 2) [2020] FCA 423 McKenzie v Cash Converters International Ltd (No 3) [2019] FCA 10 Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd [2017] FCAFC 98; 252 FCR 1 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 Mobil Oil Australia Pty Ltd v State of Victoria [2002] HCA 27; 211 CLR 1 Owners of the Ship ‘Shin Kobe Maru’ v Empire Shipping Co Inc [1994] HCA 54; 181 CLR 404 Perera v GetSwift Ltd [2018] FCA 732; 263 FCR 1 R v Falzon [2018] HCA 29; 264 CLR 361 Regent Holdings Pty Ltd v State of Victoria [2012] VSCA 221; 37 VR 424 The Owners – Strata Plan No 87231 v 3A Composites GmbH (No 3) [2020] FCA 748 Timbercorp Finance Pty Ltd (in liq) v Collins [2016] HCA 44; 259 CLR 212 Uren v RMBL Investments Ltd (No 2) [2020] FCA 647 Webster (Trustee) v Murray Goulbourn Co-Operative Co. Ltd (No 4) [2020] FCA 1053 Wetdal Pty Ltd as Trustee for the BlueCo Two Superannuation Fund v Estia Health Ltd [2021] FCA 475 Wigmans v AMP Ltd [2020] NSWCA 104; 102 NSWLR 199 Zoetis Australia Pty Ltd v Abbott [2019] FCAFC 153
	Class Actions Practice Note (GPN-CA)
Registry	New South Wales
Division	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Corporations and Corporate Insolvency
Number of paragraphs:	156
Date of hearing:	25 February 2022
Counsel for the Applicant:	Mr W A D Edwards with Mr R J May
Solicitor for the Applicant:	Maurice Blackburn
Counsel for the Respondent:	Mr C Moore SC with Ms F Roughley and Ms G Keesing
Solicitor for the Respondent:	Herbert Smith Freehills
Contradictor:	Mr D Sulan SC with Mr M Pulsford

ORDERS

		NSD 602 of 2020
BETWEEN:	ANDREW PARKIN Applicant
AND:	BORAL LIMITED (ACN 008 421 762) Respondent

order made by:	MURPHY, BEACH and LEE JJ
DATE OF ORDER:	28 March 2022

THE COURT ORDERS THAT:

1. The questions reserved pursuant to s 25(6) of the Federal Court of Australia Act 1976 (Cth) (Act) and r 30.01 of the Federal Court Rules 2011 (Cth) arising in relation to the applicant’s amended interlocutory application filed 14 December 2021 and the respondent’s interlocutory application filed 24 February 2021 be answered as follows:

1 Does the Federal Court of Australia have power pursuant to s 33ZF of the [Act] or otherwise to make an order in terms of prayer 9 of the Interlocutory Application (or in substantially similar terms), which has the effect of providing that any Group Member who by the Class Deadline (as defined in the Interlocutory Application): (i) has not registered in accordance with the orders of the Court; or (ii) has not opted out of this proceeding in accordance with the orders made by the Court, will remain a Group Member for all purposes of this proceeding but shall not, without leave of the Court, be permitted to seek any benefit pursuant to any...