Australian Retirement Group Pty Ltd v The Commonwealth Bank of Australia Ltd (No 3)

Australian Retirement Group Pty Ltd brought an action against The Commonwealth Bank of Australia Ltd regarding a representative proceeding. The matter came before the Federal Court to determine the appropriate means of notifying individuals of their right to opt out of the proceeding. The court had to decide the extent of the bank’s obligation to identify and notify members of the class of customers affected by the alleged misleading or deceptive conduct. The plaintiffs sought an order for the bank to identify all customers who had accounts with it as at a specific date and to send each of them a notice of the proceeding. The bank argued that it should not be required to identify and notify individual customers, as it would be unduly burdensome and potentially infringe on privacy rights.

The court found that the bank’s obligation was not to identify individual customers but to ensure that a reasonable number of them received notice of the proceeding. The court emphasised the importance of balancing the need to inform potential class members with the practicalities and privacy concerns of identifying and contacting each individual. The bank was required to take reasonable steps to advertise the proceeding in a way that would bring it to the attention of a significant number of affected customers. This could include advertising in newspapers, on its website, and through other means that would likely reach a substantial portion of the affected class. The court held that the bank’s obligation was not to ensure that every individual customer received notice, but rather that a reasonable number of them were informed of the proceeding.