FEDERAL COURT OF AUSTRALIA

Courtney v Medtel Pty Limited [2001] FCA 1365

PROCEDURE – discovery – notice to produce – without prejudice privilege – representative proceedings – where documents sought relate to settlement negotiations between respondent and group members in a representative proceeding – whether privilege extends to communications made between the party claiming the privilege and a third party – where documents are produced with names and addresses of group members obscured – whether applicant is entitled to see the names of the group members in the documents produced

PROCEDURE – representative proceedings – order sought by applicant that respondent not communicate with members of the representative group

Evidence Act 1995 (Cth) s 131(1)

Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 followed

O’Rourke v Darbishire [1920] AC 581 followed

Cutts v Head [1984] 1 Ch 290 followed

Field v Commissioner of Railways (NSW) (1957) 99 CLR 285 followed

Harrington v Lowe (1996) 190 CLR 311 followed

Rush & Tompkins Ltd v Greater London Council [1989] AC 1280 considered

Austotel Management Pty Ltd v Jamieson (1995) 57 FCR 411 referred to

Bailey v Beagle Management Pty Ltd [2001] FCA 185 referred to

Federal Commissioner of Taxation v Coombes (1999) 92 FCR 240 considered

Ralls v United States  (1995) 52 F.3d 223 distinguished

Williams v FAI Home Security Pty Ltd (No 3) [2000] FCA 1438 considered

Courtney v Medtel Pty Limited [2001] FCA 1037 referred to

King v GIO Australia Holdings Ltd [2001] FCA 270 distinguished

Kleiner v First National Bank of Atlanta 751 F.2d 1193 (1985) considered

Resnick v American Dental Association 95 F.R.D. 372 (1982) considered

KEVIN GLYNN COURTNEY in a representative capacity on behalf of all persons in whom St Jude Tempo Pacemakers were surgically implanted in Australia v MEDTEL PTY LIMITED

N 661 OF 2000

STONE J

25 SEPTEMBER 2001

SYDNEY

THE COURT ORDERS THAT:

the notice of motion filed on 15 June 2001 be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

introduction

1                     These are representative proceedings brought by the applicant on his own behalf and on behalf of persons in whom certain models of a St Jude Medical Tempo Pacemaker were surgically implanted by a doctor in Australia (the “Group Members”).  The applicant has pleaded that the respondents were in the business of manufacturing, marketing and distributing the relevant pacemakers (first respondent), importing, supplying, distributing, promoting, marketing and obtaining regulatory approvals for the relevant pacemakers (second respondent) and manufacturing, supplying, distributing, promoting, marketing and obtaining regulatory approvals for the relevant pacemakers (third respondent). The applicant alleges, inter alia, that the pacemakers were defective and not reasonably fit for their purpose. It is alleged that each of the respondents engaged in misleading and deceptive conduct in contravention of s 52 of the Trade Practices Act 1974 (Cth) and was in breach of other obligations. 

2                     By notice of motion filed on 15 June 2001, the applicant seeks orders that the respondents:

1                    not communicate, either directly or through the respondents’ legal representatives, with Group Members without the leave of the Court, until further order;

2                    file and serve an affidavit identifying all Group Members contacted by the respondent or their legal representatives since the commencement of the proceeding setting out the full text of each such communication; and

3                    issue a corrective notice to each Group Member contacted in the form of a notice annexed to the notice of motion.

3                     During the hearing, counsel for the applicant conceded that order 1 above is too wide.  He suggested that it be limited to prohibiting any attempt by the respondents to persuade Group Members to opt out of the representative proceeding without the leave of the Court. As a preliminary matter, there is also an issue to be decided concerning the respondents’ obligations under a notice to produce filed by the applicant on 22 June 2001 in accordance with O 33 r 12 of the Federal Court Rules. 

Notice to Produce

4                     The notice to produce requires the respondents to produce the following documents:

“1.       The original or a copy of all records, sound recordings, and notes of any oral communications from, to or between the Respondents’ legal representatives and group members, since the commencement of the proceedings.

2.                  The original or a copy of all written correspondence between group members and the Respondents’ legal representatives, since the commencement of the proceedings.”

5                     In response to the notice to produce, the respondents have provided to the applicant a bundle of documents that was marked as “Exhibit 1” in the proceeding. Exhibit 1 consists of nine sub-bundles each being the records of communication between the respondents’ solicitors and a Group Member.  Each sub-bundle includes a hand-written memorandum of a telephone conversation between the solicitors for the respondents and a Group Member (or representative). It would appear that the conversation concerned the compensation (limited to out of pocket expenses) that the respondents were prepared to offer to the relevant Group Member in settlement of the dispute.  In those instances where this offer had initially been accepted (seven of the nine cases), the sub-bundle also included a letter to the relevant Group Member purporting to confirm that telephone conversation as well as ancillary documents which had been enclosed under cover of the letter. It is not clear how many of the seven initial acceptances actually resulted in executed releases and signed opt-out notices. With one exception, the name and address of the relevant group member and any reference to the amount of compensation had been obscured.  The exception is the bundle of documents relating to the claim of Mr Albert Betts (the “Betts documents”). Mr Betts’ wife, Mrs Rhonda Betts, represented her husband in negotiations with the respondents.

6                     The respondents originally objected to any production of the subject documents on the grounds of “without prejudice” privilege, in that the documents were produced in the course of, and solely for the purpose of, negotiating the settlement of a legal dispute. On further consideration, the respondents decided to waive privilege except in relation to those parts of the documents that were obscured and to produce them to the applicant on that basis. The bundle of documents in Exhibit 1 was tendered expressly on the basis that the documents were not in evidence in the proceedings as a whole but only for the purposes of this application. The respondents claim that, as they are entitled to refuse to produce the documents in their entirety, they are entitled to produce them with the name and address of the relevant group member and any reference to the amount of compensation obscured.

7                     The applicant did not dispute that the amount of compensation referred to in each sub-bundle is privileged and did not press to see those amounts. The applicant did press its claim to see the names of persons with whom those communications were held and to tender the documents, with names revealed, in relation to the notice of motion.

Evidence Act 1995 (Cth) – s 131

The respondents submit that, given the notice to produce is expressed to be for the purpose of evidence, s 131(1) of the Evidence Act 1995 (Cth) (“Act”) entitles them to resist production of the documents. Section 131(1) is as follows:

“Evidence is not to be adduced of:

(a)               a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute; or

(b)               a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute.”

I have examined the documents in Exhibit 1 and am satisfied that they have been prepared in connection with negotiations between the respondents and certain other persons concerning the settlement of a legal dispute. That being so, the communications that they record clearly fall within s 131(1) and could not be adduced in evidence. In relation to the discovery and inspection of these documents, the respondents concede that the decision of the High Court in Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 would preclude reliance on the section.  Since the right to discovery and the production of documents does not depend on the admissibility of the documents in evidence (O’Rourke v Darbishire [1920] AC 581) the concession was rightly made. 

“Without prejudice” privilege

8                     The respondents’ alternative claim is independent of the Act and relies on the common law doctrine of “without prejudice” privilege which has not been modified by the Act; Esso Australia Resources Ltd v Federal Commissioner of Taxation (above).

9                     At common law, privilege attaches to negotiations conducted “without prejudice” for the purpose of negotiating a settlement of a legal dispute. The rule, which governs the admissibility of evidence, is founded upon the public policy of encouraging litigants to settle their disputes; Cutts v Head [1984] 1 Ch 290 at 306 per Oliver LJ. It protects the parties to a dispute from the consequences of having concessions or admissions made for the purpose of settling the dispute put in evidence if the negotiations fail; Field v Commissioner of Railways (NSW) (1957) 99 CLR 285 at 291; Harrington v Lowe (1996) 190 CLR 311 at 323.  The rule applies to exclude all negotiations genuinely aimed at settlement whether oral or in writing from being given in evidence; Rush & Tompkins Ltd v Greater London Council [1989] AC 1280 (“Rush & Tompkins”) at 1299.

10                  This case raises a number of issues concerning “without prejudice” privilege namely,

(a)                whether it extends to communications made between the party claiming the privilege and a third party;

(b)               whether it applies to production and inspection of the relevant documents;

(c)                whether it applies to those parts of the documents where names of the persons with whom the settlement negotiations were held are mentioned.

11                  The first two issues were considered in Rush & Tompkins. In that case,the plaintiffs had commenced proceedings against the first and second defendants but subsequently settled the matter with the first defendant and discontinued the action against it. The second defendants sought discovery of “without prejudice” correspondence that had been instrumental in bringing about the settlement.  The Court of Appeal allowed the second defendants’ appeal from the primary judge’s dismissal of the application for discovery, holding that the privilege no longer applied once the settlement was concluded. 

12                  Before the House of Lords it was submitted that the privilege no longer applied once the settlement was concluded or, in the alternative, that the privilege does not prevent a third party from requiring discovery of the correspondence provided that it is relevant. Lord Griffiths (with whom Lord Bridge of Harwich, Lord Brandon of Oakbrook, Lord Oliver of Aylmerton and Lord Goff of Chievely agreed) observed, at 1300, that:

“Nearly all the cases in which the scope of the “without prejudice” rule has been considered concern the admissibility of evidence at trial after negotiations have failed. In such circumstances no question of discovery arises because the parties are well aware of what passed between them in the negotiations. These cases show that the rule is not absolute and resort may be had to the “without prejudice” material for a variety of reasons when the justice of the case requires it. It is unnecessary to make any deep examination of these authorities to resolve the present appeal but they all illustrate the underlying purpose of the rule which is to protect a litigant from being embarrassed by any admission made purely in an attempt to achieve a settlement.”

13                  Having held that the privilege survives the settlement of the dispute and also extends to a third party, his Lordship then considered the distinction between the admissibility of the correspondence and the question of the right to discovery and production. Having considered the relevant authorities (including some conflicting Canadian decisions), Lord Griffiths held, at 1305, that:

“the general public policy that applies to protect genuine negotiations from being admissible in evidence should also be extended to protect those negotiations from being discoverable to third parties.”

The House of Lords’ approach has been followed by this Court in Austotel Management Pty Ltd v Jamieson (1995) 57 FCR 411 at 416 per Burchett J and in Bailey v Beagle Management Pty Ltd [2001] FCA 185 at [17]-[18] per Goldberg J.  In light of these authorities, the applicant is not entitled to require production of the documents for the purpose of inspection.

14                  This does not, however, deal with all the submissions made for the applicant. As indicated in [6] above, the respondents claim that as they are entitled to withhold the documents they are entitled to produce them with the names obscured. They also oppose the production of the names on the ground of relevance. The applicant’s position is that the names of the persons involved in settlement negotiations and their addresses are not privileged. The applicant relied on Federal Commissioner of Taxation v Coombes (1999) 92 FCR 240 (“Coombes”). In that case, the Commissioner made a demand under s 264 of the Income Tax Assessment Act 1936 (Cth) that the respondent solicitor provide the names of clients who had purchased, implemented or entered into certain employee share acquisition arrangements. Section 264 empowered the Commissioner by notice in writing to require any person, whether a taxpayer or not, “to furnish him with such information as he may require”. The respondent had refused to release certain names on the ground of legal professional privilege. The Full Court held that the provision of the names and addresses sought by the Commissioner would not disclose any confidential communication and therefore the names were not privileged from disclosure.

15                  In my view, Coombes is of doubtful relevance to the issues in this case. In Coombes, the names and addresses sought by the Commissioner could be provided without any other information. Here the applicant seeks the production of documents containing the information sought. If the names (presently obscured in the documents) are revealed, the applicant will have those names in the context of the settlement negotiations.  This case has more in common with Ralls v United States (1995) 52 F.3d 223 (“Ralls”) which was discussed in Coombes at [29].  In that case, the Court of Appeals for the Ninth Circuit had refused to order that the identity of a lawyer’s client be divulged because the client’s identity and the confidential communications were so intertwined that revealing the identity would amount to revealing the privileged communication. The Full Court in Coombes distinguished the circumstances in Ralls from those it was considering commenting, at [34], that:

“Cases such as Ralls deal with the situation where so much of a communication has already been disclosed that identification of the client amounts to disclosure of a confidential communication. The notion is that to attach the client’s name to an anonymous communication is to make that communication a privileged one.”

16                  This case involves such a situation.  I do not accept that the names sought by the applicant are not part of the confidential communication evidenced in the documents.  The applicant says that the names themselves tell one nothing about the settlement negotiations. That may be so but, taken in conjunction with the information contained in the documents, they tell virtually the whole story.  In my opinion, the privilege which protects the respondents from having to produce the documents attaches equally to the names included in those documents.

Relevance

17                  The respondents submitted that, independently of any issue of privilege, they are entitled to resist the applicant’s demand that the names in the documents be revealed on the ground of relevance. They submit that the grounds put forward by the applicant as the basis of his claim for the orders sought (see [2] - [3] above) cannot derive any support from the identity of the class members with whom there have been settlement negotiations.

18                  Even if I am wrong in my conclusions on the question of privilege, I would decline to order that the respondents reveal those parts of the documents that they have obscured because I accept the respondents’ submission that the obscured information is irrelevant to the matter at hand. The material is tendered in support of the applicant’s claim that the communications the respondents have had with Group Members may be misleading. The assessment of this claim will not be affected by the failure to reveal the obscured parts of the documents. An order that the names and addresses be provided to enable the applicant to make further enquiries as to the content of the oral communications between the respondents’ solicitors and Group Members would, in my view, authorise a fishing expedition. In any event, concern about oral communications are alleviated by the follow-up letter that was sent in every case where an agreement was reached.

NOTICE OF MOTION

19                  Although no evidence has been presented on the point, it appears to be common ground between the parties that certain Group Members contacted the respondents or their solicitors seeking payment of expenses incurred in respect of the allegedly faulty pacemakers. The material in Exhibit 1 indicates that the solicitors for the respondents contacted these Group Members and advised them that the respondents would cover their “out of pocket” expenses in return for a release from further claims and a signed opt-out form.  The orders sought by the applicant in the notice of motion would preclude any further settlement negotiations such as are evidenced by the documents in Exhibit 1.

Applicant’s submissions concerning misleading conduct

20                  The concern expressed by the applicant is that, until the Group Members receive the opt-out notice, they will not be fully informed about the relative advantages and disadvantages of settling their claims against the respondents or remaining within the representative class. In this regard, counsel for the applicant referred me to the comment of Goldberg J in Williams v FAI Home Security Pty Ltd (No 3) [2000] FCA 1438 (“Williams”) at [24]:

“The nature of class actions brought pursuant to provisions of Pt IVA of the [Federal Court of Australia Act 1976] are such that it is imperative that any communications made to group members, in whatever form, be accurate especially in relation to the rights which they have in relation to class actions of which they are a group member and the rights which they have to opt out of such proceedings.”

21                  Broadly the allegation made by the applicant is that, in the course of settlement negotiations with Group Members, the solicitors for the respondents made a distinction between ‘compensation’ and ‘out of pocket expenses’. Compensation was said to be unavailable because it might be construed as an admission in the representative proceeding.  It was submitted that the (legally untenable) distinction might have misled the Group Members into believing that compensation beyond actual disbursements could not be paid in an out-of-court settlement. Those persons would thus be at a disadvantage in negotiating with the respondents. Furthermore, it was submitted, the communications from the respondents’ solicitors may have led the Group Members to believe that involvement in the representative proceedings would commit them to legal expenses that could be avoided by a private settlement with the respondents.  In addition they point to the fact that the opt-out notice will advise Group Members of the desirability of obtaining legal advice before making a decision. It would appear that no such advice was given to the Group Members with whom the respondents held settlement negotiations.

Respondents’ submissions

22                  The respondents’ submissions on this issue can be summarised as follows:

·                    there is no evidence before the Court that the communications were misleading and there is no basis for any such inference;

·                    no solicitor-client relationship exists between the applicant’s solicitors and those of the Group Members with whom the respondents have had settlement negotiations and therefore no practice rule precludes the contact;

·                    Group Members who wish to do so should be free to negotiate a settlement of their claims;

·                    the orders sought would be contrary to the public interest in promoting out-of-court settlements;

·                    the orders are unsupported by legal principle or by any legal authority, statutory or otherwise.

The settlement negotiations

23                  It is necessary to consider the details of some settlement negotiations evidenced in Exhibit 1, in particular those evidenced by the Betts documents (see [5] above). In the Betts documents the names and amounts are not obscured and the respondents conceded that privilege has been waived in relation to the negotiations with Mrs Betts. The documentary evidence consisted of documents relating to the quantification of expenses incurred by Mr Betts, a handwritten record diary note made by Mrs Betts and a hand written file note made by Ms Harris. Both handwritten notes relate to a telephone conversation between Mrs Betts and Ms Harris on 29 May 2001. The telephone conversation of 29 May was in response to a letter dated 16 October 2000 from Mr Betts to the second respondent enclosing medical bills in respect of her husband’s treatment and seeking reimbursement.  The letter also referred to travelling expenses but did not quantify those expenses.

24                  In her affidavit sworn on 20 June 2001, Ms Harris gave the following account of the telephone conversation. Having introduced herself, she explained that she was a lawyer acting for the second respondent and referred to the medical expenses and the travelling expenses that had been claimed.  The conversation continued:

“Ms Harris:    There is a class action currently on foot against St Jude and 2 other companies whom we also represent, in relation to certain models of Tempo pacemaker including your husband’s. In the action, it is claimed that those pacemakers were defective based on a hazard alert which was issued in relation to them. Are you aware of the class action?

Mrs Betts:       I think I’ve heard about it but I don’t know any details.

Ms Harris:      The action has been brought by a person called Kevin Courtney. He is being represented by a law firm called Maurice Blackburn Cashman. Mr Courtney has commenced the action on behalf of all people, including your husband, who have been implanted with certain models of St Jude Tempo pacemaker, including model number 2902. In this way, your husband is automatically part of the class action, even if he doesn’t know about it, unless he signs a form ‘opting out’ of it.

Mrs Betts:       I see.

Ms Harris:      Because of the class action, St Jude has to be careful about making payments to pacemaker recipients, to make sure that payment is not seen as an admission of liability by St Jude.

Consequently, St Jude is prepared to make a without prejudice offer to reimburse your husband for all out of pocket expenses incurred as a result of the replacement of his Tempo 2902 pacemaker, in return for your husband agreeing to opt out of the class action and releasing St Jude and the other 2 companies from any claims he now has, or may have in the future, arising from his use of the allegedly faulty Tempo pacemaker. St Jude is not offering to compensate your husband, for example, for any suffering he may claim to have suffered as a result of having to replace the pacemaker.

Do you understand what I have said so far?

Mrs Betts: Yes. I’m quite sure that Albert would not want to be part of the class action. I’ll check with him and call you back.

Ms Harris: Please also explain to your husband that by signing the forms, he will waive all claims in relation to the pacemaker, and that if he wants to accept St Jude’s offer, he has to calculate the exact amount of non-medical expenses. In his letter to St Jude, he claims an unspecified amount for travelling expenses to and from Nepean Hospital. Please ask him if there are any other non-medical expenses, such as parking fees or the cost of food or accommodation.

Mrs Betts: There were probably some parking fees. I’ll have to check and get back to you.”

25                  Mrs Betts’ account of the conversation was quite different. She rejected Ms Harris’s account and denied that Ms Harris had made any mention of a class action, the name of the applicant or the applicant’s solicitors, opting out, without prejudice or admission of liability. According to Mrs Betts, the conversation was very short. After the introductory remarks, Ms Harris told Mrs Betts that the second respondent had paid $486 for outstanding doctor’s fees and asked for details of outstanding travel expenses.  Ms Harris is said to have stated that the expenses that the second respondent would cover would include “mileage, car parking fees and meals, and any other out of pocket expenses.” In addition Ms Harris is said to have made the following comment:

 “Your husband would have to sign a form once you work out what the expenses were, and that would release St Jude from any further responsibility in relation to his pacemaker. You will have to ring me back after you have spoken to your husband about this.”

26                  On cross-examination Mrs Betts was questioned about the diary note referred to in [23] above. Although the diary page was for the dates 17, 18, 19 and 20 May 2001, it was not in dispute that Mrs Betts made the note during a telephone conversation with Ms Harris on 29 May 2001.  Reading down the page there appears in the following order:

“St Jude

486.00

Cashman

Tempo 2902

Releash

Travell

Ring me”

27                  Following the above entries there is written a phone number, Ms Harris’s name and the name of the firm in which she is employed. It was put to Mrs Betts that she had written the name, “Cashman” where it earlier appears on the page because Ms Harris had mentioned the law firm in connection with there being a class action. Mrs Betts rejected this interpretation and said that she had written the name because she thought of it during the conversation with Ms Harris. Mrs Betts testified that immediately after the conversation with Ms Harris she telephoned the applicant’s solicitors and started to record details of that conversation immediately below the above entries. On the diary there appears the name Maurice Blackburn Cashman (written in full) and a telephone number and the name of a solicitor with that firm.

28                  On cross-examination Ms Harris explained that, in accordance with her usual custom, the file note of the conversation with Mrs Betts was produced shortly after the conversation with Mrs Betts. Ms Harris explained that, before calling a claimant such as Mr Betts, she notes any information she has in relation to that person and his or her claim. She then writes down various “prompts” that she uses during the conversation to remind herself of what she intends to say and the issues she intends to cover. During the conversation she makes notes on the same piece of paper and, after the conversation, prepares a file note of the conversation from that piece of paper. Any conversation in which settlement has been agreed is followed by a letter that confirms the details of the conversation and sets out the agreed terms of the settlement. A sample of such a letter is included in Exhibit 1. The applicant did not challenge Ms Harris’s statement that the file note of her conversation with Mrs Betts was produced before any issue had arisen as to the appropriateness of the respondents’ solicitors having contact with Group Members.

29                  As can be seen from the above, there is considerable discrepancy between the accounts given by Mrs Betts and Ms Harris. I accept Ms Harris as the more reliable witness. In coming to this conclusion I have attempted to make allowances for the fact that Mrs Betts, for obvious reasons, was not as polished a witness as Ms Harris. This does not mean that Ms Harris’s account is to be preferred. However, even allowing for a difference in presentation, Mrs Betts was not a convincing witness. There were some inconsistencies between her affidavit evidence and her oral testimony. Her explanation of the notation she made in the diary note discussed at [26] - [27] above was not convincing. The fact that she noted the name of the applicant’s solicitors during the conversation with Ms Harris suggests to me that the name came up in the conversation. In coming to this conclusion, I do not intend to cast doubt on Mrs Betts’ veracity. It is likely, however, that she confused the content of the two conversations that she had in quick succession, namely the conversation with Ms Harris and that with the applicant’s solicitors.

30                  The communications evidenced by other bundles of documents in Exhibit 1 are similar to Betts documents although individual differences are apparent. The material in Exhibit 1 shows that seven of the nine Group Members (including Mr Betts) were initially prepared to accept the settlement offer made by the respondents and two rejected the offer. It appears that the offer made to Mr Betts was subsequently withdrawn presumably because Mrs Betts was not comfortable that her husband had made a fully informed decision.

31                  Having reviewed the documents in Exhibit 1, I am not convinced that the conduct of the respondents has been shown to be misleading. It was not disputed that the contact was initiated by Group Members contacting the respondents or their solicitors seeking reimbursement of their expenses. In one case only is there any indication that the Group Member sought compensation beyond those expenses. In that case there was no settlement and no indication that any pressure was brought to bear. File notes of conversations made by the respondents’ solicitors show that in a number of cases the Group Member did not want to be involved in lengthy litigation because of age or ill health.

32                  Since the hearing on the applicant’s notice of motion, the form and content of a notice for the purposes of s 33Y(2) of the Federal Court of Australia Act 1976 (Cth) has been approved by the Court; Courtney v Medtel Pty Limited [2001] FCA 1037.  Given that approval, concluding settlement negotiations in circumstances where this notice had not been drawn to the attention of the Group Member might well give rise to an inference of misleading conduct. It is not necessary for me to comment further on this possibility.

Integrity of representative proceeding

33                  As a subsidiary argument, counsel for the applicant laid much stress on the “integrity of the opt-out process” and its importance for representative proceedings. He submitted that, even if I am satisfied that the Group Members with whom the respondents or their solicitors have communicated have not been given misleading or incomplete information, I should nevertheless make the orders sought as contact between the respondents and Group Members might interfere with the integrity of the opt-out process. It was submitted that the legislature has recognised a public interest in enabling class actions to be brought and that this dictates that procedures consistent with that interest should be observed.

34                  In support of this subsidiary argument, Mr Clarke referred me to comments of the Full Court in King v GIO Australia Holdings Ltd [2001] FCA 270 at [15] (“King”) concerning the importance of the opt-out notice being clear and simple and not creating a misleading impression. He also relied on similar comments of Goldberg J in Williams at [24].  In addition Mr Clarke relied on two United States decisions, Kleiner v First National Bank of Atlanta 751 F.2d 1193 (1985) (“Kleiner”) and Resnick v American Dental Association 95 F.R.D. 372 (1982) (“Resnick”). Both these decisions emphasise the importance of a group member’s decision to opt-out being fully informed and in both cases the Court made orders concerning communications between the defendant and the class members similar to those that the applicant now seeks. In each case, the Court did so because of its concern with the integrity of the opt-out process. There, however, the resemblance ends. The concerns expressed in the United States cases must be considered in the context of their facts.

35                  In Kleiner, the defendant Bank had embarked on an aggressive campaign, carried out in “secrecy and haste”, of contacting members of the representative class to urge them to opt out of the proceedings. This campaign was conducted in the face of a protective order made by the trial judge that allowed the defendant Bank to take depositions from only five class members. The protective order was prompted by concern that the Bank was harassing class members. The Court noted (at 1199) that the trial judge had found the Bank to have acted in bad faith and that the briefing document which was relied on in communications with class members contained “misleading portrayals of fact”. The Court noted (at 1202) that the potential for harassment was great as the class members consisted of bank customers “many of whom were dependent on the Bank for future financing”.

36                  In Resnick, the Court expressly based its order on a provision in the Code of Professional Responsibility prohibiting a lawyer for one party in the litigation from communicating on the subject of the litigation with a party “he knows to be represented by a lawyer in that matter” without the consent of the representing lawyer. It was not argued that any such provision applies here. In addition it was conceded by the applicant that there is no solicitor-client relationship between Maurice Blackburn Cashman and the Group Members concerned. Counsel for the applicant has expressly disclaimed any allegation of professional misconduct. In my view Resnick is of little relevance here.

37                  Both King and Williams concerned a potentially misleading document. In King the respondents claimed that the part of the opt-out notice dealing with the liability of group members to pay legal costs was misleading. On appeal that claim was upheld. The comments of the Full Court on the importance of group members not being misled are applicable here, as they would be in any representative proceeding, but beyond that the case does not assist. The fact that the opt-out notice in King was found to be misleading cannot be of any assistance in determining whether the communications that the respondents had with Group Members were misleading. The same comment applies to Williams which concerned a public statement made about the status of the proceeding.  It is relevant, however, to note that, although Goldberg J found that there were incorrect statements in a document that had been distributed to group members, an order that a correction notice be issued was sufficient protection of the integrity of the proceeding. His Honour also indicated that, although a group member was told that the class action would “fail” or was not going ahead, he would not make orders that the respondents not communicate with certain members of the representative group without the leave of the Court unless he was satisfied that this was more than an isolated incident or that improper pressure had been brought on group members to persuade them not to participate in the representative proceeding. 

38                  Finally, if I were to accept the submission that the orders sought by the applicant should be made even in the absence of misleading conduct by the respondents, there would be no reason to distinguish between this case and any other representative proceeding. In the absence of a clear indication to the contrary, I do not accept that the legislature intended the public interest that is served by the efficiency of group proceedings to override the public interest in the settlement of disputes to this extent. In any event if would be quite inappropriate for a single judge at first instance to make such an order.

conclusion

39                  For the above reasons I am not prepared to make the orders sought by the applicant. The orders of the Court will be that the notice of motion be dismissed. I will hear the parties on the question of costs.

Associate:

Dated:              25 September 2001