Asirifi-Otchere v Swann Insurance (Aust) Pty Ltd (No 2)

The applicant, Asirifi-Otchere, brought a proceeding against Swann Insurance (Aust) Pty Ltd in the Federal Court of Australia, seeking to represent a class of policyholders who purchased additional insurance products during the period from 1 January 2008 to 1 August 2017. The proceeding concerns six add-on insurance products (AOIPs) sold to consumers at or around the time of the purchase of a motor vehicle or motorcycle. The applicant purchased two of the six AOIPs, Gapcover Insurance and Motor Vehicle Mechanical Breakdown Insurance. The respondents argued that, if the applicant wished to have common questions determined at the initial trial that were not relevant to the applicant's claim, group members who purchased the other four AOIPs should be joined to the proceeding as sub-group representative parties. The applicant argued that the appointment of sub-group representative parties was unnecessary and would be unhelpful.

The court was required to decide two legal issues: (1) whether, for the purpose of determining issues common to the claims of only some of the group members, it is first necessary to establish a relevant sub-group and appoint a person to be the sub-group representative party on behalf of the sub-group members; and (2) whether certain of the proposed common questions are inappropriate because they can only be resolved by considering the individual circumstances of each group member.

The court found that the relative bargaining positions of Swann and its customers cannot be determined in the abstract, and this is a question that will be determined in the cases of the applicant and the sample group members. The court held that the appointment of sub-group representative parties was not necessary to determine the common questions, and that the proposed common questions were not inappropriate as they could be resolved without considering the individual circumstances of each group member. The court ordered that the matters to be determined at the initial trial include the whole claim of the applicant, the whole claim of any sample group members, and the questions of fact or law common to the claims of the applicant and the group members.

The applicant was substantially successful in obtaining the relief sought, and the costs of the interlocutory application filed on 13 July 2020 were to be paid by the respondents. The court appointed three sample group members for the purposes of the proceeding and ordered that the matters to be determined at the initial trial include a list of common questions concerning the Swann business model, the add-on insurance products, the Swann Sales System, and the sale of the AOIPs to the applicant and group members. The court also ordered that the respondent pay the applicant's costs of the interlocutory application filed on 13 July 2020.