Bogan v The Estate of Peter John Smedley (Deceased) (Soft Class Closure Ruling)
[2025] VSC 434
•21 July 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
GROUP PROCEEDINGS (CLASS ACTIONS)
S ECI 2020 03281
BETWEEN:
| ANTHONY BOGAN | First Plaintiff |
| MICHAEL THOMAS WALTON | Second Plaintiff |
| v | |
| THE ESTATE OF PETER JOHN SMEDLEY (DECEASED) & ORS (according to the attached Schedule) | Defendants |
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JUDGE: | Matthews J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers: submissions and evidence filed 1 July 2025, 8 July 2025, 11 July 2025 |
DATE OF RULING: | 21 July 2025 |
CASE MAY BE CITED AS: | Bogan v The Estate of Peter John Smedley (Deceased) (Soft Class Closure Ruling) |
MEDIUM NEUTRAL CITATION: | [2025] VSC 434 |
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PRACTICE AND PROCEDURE — Group Proceedings — Opt out — ‘Soft’ class closure orders — Whether appropriate or necessary to ensure that justice is done — Where notice regime appropriate to ensure that justice is done — Supreme Court Act 1986 (Vic), ss 33ZF, 33ZG — Lendlease Corporation Ltd v Pallas [2025] HCA 19.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr B O’Connor | Banton Group |
| For the First to Fourth Defendants | Mr M Pesman SC Ms T Spencer Bruce SC Mr D Farinha | Baker McKenzie |
| For the Fifth Defendant | Ms J Roy Ms C Trahanas | Ashurst Australia |
Contents
A.. Introduction
B.. Background
B.1 Subject matter of the proceeding
B.2 Summary of procedural background
C.. Matters for determination
D.. Period of notice for opting out and soft class closure
D.1 Evidence and submissions
D.2 Consideration
E... Registration procedure and consequences of failing to register
E.1 Justification for soft class closure
E.1.1 Evidence and submissions
E.1.2 Consideration
E.2 Should the Soft Closure Date be 4 May 2026 or 20 July 2026?
E.2.1 Evidence and submissions
E.2.2 Consideration
F... Form of notice
G.. Distribution/publication of notice
H.. Conclusion
HER HONOUR:
A Introduction
This is a group proceeding (also known as a class action) issued under Part 4A of the Supreme Court Act 1986 (Vic) (the Act). By summons filed 1 July 2025, the plaintiffs seek orders pursuant to ss 33J, 33X and 33Y and/or 33ZF of the Act fixing the date by which group members may opt out of the proceedings and for notice to be given accordingly. They also seek orders under s 33ZG of the Act for what has come to be referred to as ‘soft class closure’: if the proceeding does not settle on or before a specified date before trial (Soft Closure Date), the claims of unregistered group members will still be determined in the proceeding, such that all group members (save for those who opt out) will be bound by the result of the proceeding and entitled to seek to benefit from any judgment given in favour of the plaintiffs. Those group members who do not register by the stipulated date (referred to as the Class Deadline) will not be permitted to participate in any settlement reached before the Soft Closure Date, unless granted leave to do so.
The defendants support the making of the orders sought by the plaintiffs, save for one issue, that being the Soft Closure Date. As will be explained more fully below, the plaintiffs contend that the Soft Closure Date should be 4 May 2026, whereas the defendants contend that the Soft Closure Date should be 20 July 2026.
The Court has express power under ss 33ZF and 33ZG of the Act to make orders of the kind sought.
Section 33ZF provides that the Court may make any order it ‘thinks appropriate or necessary to ensure that justice is done in the proceeding’. Section 33ZG elaborates on this and relevantly provides as follows:
33ZG Order may specify a date by which group members must take a step
Without limiting the operation of section 33ZF, an order made under that section may—
(a) set out a step that group members or a specified class of group members must take to be entitled to—
(i) any relief under section 33Z; or
(ii) any payment out of a fund constituted under section 33ZA; or
(iii) obtain any other benefit arising out of the proceeding—
irrespective of whether the Court has made a decision on liability or there has been an admission by the defendant on liability;
(b) specify a date after which, if the step referred to in paragraph (a) has not been taken by a group member to whom the order applies, the group member is not entitled to any relief or payment or to obtain any other benefit referred to in that paragraph.
The principles informing an exercise of power under ss 33ZF and 33ZG are now well established. I refer to and rely upon the summary of those principles set out in Fox v Westpac; O’Brien v ANZ; Nathan v Macquarie.[1] I am also mindful of the reasons given by Gageler CJ, Gleeson and Jagot JJ in Lendlease Corporation Ltd v Pallas[2] regarding the practical utility of soft class closure orders, and the comments of Nichols J on those observations in Nelson v Beach Energy Ltd.[3]
[1][2023] VSC 414 (Fox v Westpac), [14]–[18].
[2][2025] HCA 19 (Lendlease), [17]–[19].
[3][2025] VSC 339 (Nelson v Beach Energy), [32]–[34].
The plaintiffs’ application was supported by an affidavit of their solicitor, Lisa Gallate, of Banton Group, sworn 1 July 2025 (Gallate Affidavit), and by written submissions dated 11 July 2025 from their counsel. The first to fourth defendants (the Director Defendants) rely on an affidavit of their solicitor, Mark Desmond Chapple, of Baker McKenzie, affirmed 8 July 2025 (Chapple Affidavit), and on written submissions from their counsel dated 11 July 2025. The fifth defendant (KPMG) relies on the written submissions of its counsel dated 11 July 2025.
For the reasons set out below, I consider that class closure orders are appropriate to ensure that justice is done in the proceeding, and that this is best achieved by the Soft Closure Date being 20 July 2026.
B Background
B.1 Subject matter of the proceeding
The subject matter of this proceeding can be shortly summarised.
The plaintiffs and group members are shareholders who acquired an interest in shares between 19 August 2014 and 4 April 2016 (Relevant Period) in insolvent mining company, Arrium Corporation Ltd (in liquidation) (Arrium), who claim to have suffered loss or damage by reason of the alleged misconduct of Arrium’s former directors, being the Director Defendants, and its auditor, KPMG, being the fifth defendant. Arrium was placed into voluntary administration in April 2016 and liquidation in June 2019, and until 2019 was listed on the Australian Stock Exchange (ASX).
The plaintiffs allege that the Director Defendants contravened ss 1041E and/or 1041H of the Corporations Act 2010 (Cth) (Corporations Act), s 12DA(1) of the Australian Securities and Investments Commission Act 2001 (Cth), and/or s 18 of the Australian Consumer Law, by making, maintaining and/or failing to qualify opinions and representations made in announcements and documents lodged by Arrium on the ASX. In particular, they allege that Arrium failed to properly impair the value of certain assets in the 2014 and 2015 financial years in accordance with AASB136, despite the existence of certain impairment indicators, resulting in a material overstatement of the value of Arrium’s assets in statements made to the ASX in those financial years. As a result of this alleged failure, the defendants allegedly misrepresented to the ASX that Arrium’s financial statements were prepared in compliance with Australian Accounting Standards and/or the Corporations Act and gave a true and fair view of Arrium’s financial position and financial performance during the Relevant Period in various respects.
The defendants deny the allegations made against them.
B.2 Summary of procedural background
Although this proceeding commenced in August 2020, its progress has been delayed by a number of procedural steps taken by one or more of the parties. It is unnecessary to set these out in full, but the key procedural events are these:
(a)an application for a group costs order (GCO) by the plaintiffs was heard and determined by the Honourable Justice John Dixon, with reasons delivered on 26 April 2022[4] and the order made on the same date (GCO Order);
(b)disputes as to discovery have been heard and determined;
(c)applications for security for costs have been heard and determined;
(d)KPMG’s application that this proceeding be transferred to the Supreme Court of New South Wales (Transfer Application) took a considerable period of time to be determined. It involved what were then novel points as to the effect of such a transfer of the proceeding on the GCO Order, and the relevance (if any) of the GCO Order to the discretion to be exercised in considering the Transfer Application, which resulted in specific questions being reserved for the Court of Appeal pursuant to orders made by the Honourable Justice Nichols on 7 March 2023. The Court of Appeal delivered its answers to those questions and its reasons on 26 October 2023.[5] Those questions were subsequently removed to the High Court of Australia, whose judgment was delivered on 12 March 2025.[6] Following the High Court judgment, orders were made by Nichols J on 11 April 2025 dismissing the Transfer Application; and
(e)the orders made on 11 April 2025 included orders timetabling the filing of lay and expert evidence, conferral by experts and production of joint reports, and for mediation to occur by 18 February 2026. This timetable was subsequently extended by orders made by me on 11 June 2025, including for the mediation to be concluded by 17 April 2026. The Court has subsequently been informed that, by agreement between the parties, the mediation has been arranged for 19 March 2026.
[4]Bogan v The Estate of Peter John Smedley (Deceased) [2022] VSC 201.
[5]Bogan v The Estate of Peter John Smedley (Deceased) [2023] VSCA 256.
[6]Bogan & Anor v The Estate of Peter John Smedley (Deceased) & Ors [2025] HCA 7.
The orders made on 11 June 2025 also fixed the proceeding for trial commencing on 3 August 2026 on an estimate of 6 weeks.
The plaintiffs have filed their lay evidence, and their expert evidence is due by 25 July 2025. The defendants’ evidence (including expert evidence) is due on 4 November 2026; the plaintiffs’ expert evidence in reply is due on 13 January 2026; and the joint expert reports are due on 16 February 2026.
On 26 June 2025, I made orders by consent regarding the (then) foreshadowed application regarding opt‑out and soft class closure. Relevantly, I ordered that:
(a)the plaintiffs were to file and serve any summons and supporting affidavits by 1 July 2025;
(b)the defendants were to file and serve any affidavits in respect of the application by 8 July 2025;
(c)the parties were to exchange and file submissions of no more than 4 pages by 11 July 2025; and
(d)subject to any further order, the application be determined on the papers after 4pm on 11 July 2025.
Having considered the affidavits and submissions relied upon, I have not considered it necessary to convene a hearing in respect of the plaintiffs’ summons and I have decided that it is appropriate to determine the application on the papers.
C Matters for determination
Soft class closure in this instance comprises two matters:
(a)setting a date by which group members may opt out of the proceeding (being the Class Deadline), failing which they will remain group members and be bound by any settlement or award; and
(b)setting a date by which group members must register (being the Class Deadline) to participate in any settlement of the proceeding reached by the Soft Closure Date. Failure to register will mean that unregistered group members will remain group members and will be bound by any award and by any settlement reached prior to the Soft Closure Date but will not (absent leave being granted) be able to participate in such a settlement.
Ancillary matters such as the notice regarding opt‑out and registration to be given to group members, including the form of the notice and the manner of its distribution, also need to be determined.
D Period of notice for opting out and soft class closure
D.1 Evidence and submissions
In this instance, the plaintiffs propose that the notice to group members regarding opt‑out and registration (Notice) be issued by no later than 15 September 2025 and that the Class Deadline, being the date by which group members must register or opt out, be 15 December 2025.
Ms Gallate and Mr Chapple are both senior legal practitioners with experience in the conduct of group proceedings.
Ms Gallate deposes that this period of notice, being a 3‑month window which ends prior to the Christmas vacation period, is sufficient. She says that in her experience, there is a not insignificant risk that group members may not receive the Notice for some time if it is posted during the Christmas vacation period. She deposes that the window for action is a reasonable but not lengthy period and it does not include a vacation period, such that group members will be less likely to put off attending to a response to the Notice and may be more likely to action it promptly so as not to miss the Class Deadline. Mr Chapple agrees with Ms Gallate’s reasoning and justification for the dates for issuing the Notice and for the Class Deadline.
D.2 Consideration
I accept this evidence. In my view, a 3‑month minimum period between issuing the Notice and the Class Deadline, particularly where it does not coincide with the Christmas vacation period, is suitable and appropriate. It is sufficient time for group members to consider their position, obtain advice if they choose to do so, and decide whether they wish to opt out or register.
E Registration procedure and consequences of failing to register
E.1 Justification for soft class closure
E.1.1 Evidence and submissions
Ms Gallate deposes that the soft class closure process will allow the parties to quantify the size and quantum of the class that may be amenable to settlement, which will assist in seeking to achieve finality in the proceeding for the plaintiffs, group members and the defendants at any mediation. She also deposes without such orders, it may not be possible to effect a settlement because, in her experience, defendants to group proceedings are unlikely to meaningfully engage in settlement discussions without understanding the extent of their exposure at the mediation.
Mr Chapple agrees with this. He also says that in his experience, if and where insurers are involved, any inability they may have to understand the extent of an insured’s exposure will also adversely affect their engagement and the possibility of settlement.
E.1.2 Consideration
I accept this evidence. Further, it is consistent with the rationale for soft class closure as set out in other decisions of this Court.
The matters at issue in this proceeding are legally and factually complex, which increases the risk to both parties that is inherent in any litigation. The proceeding is set down for a 6‑week trial, the costs of which will be considerable should the proceeding not settle. If the proceeding settles on terms which the Court subsequently approves, then group members will have obtained an outcome judged to be in their interests and at the same time avoid the additional significant costs of trial and the risks and uncertainties which that course carries. By confining participation to registered group members, better assessments can be made as to the likely range for the quantum of their claims. In this case, the plaintiffs’ solicitors will know the number of registered group members by the Class Deadline and will have obtained information about those group members through the registration process. This will put them in a position to develop informed views as to the likely quantum of the claim. The orders proposed by the parties include provision by Banton Group to the defendants’ solicitors of de‑identified share trade data about each registered group member, which will enable the defendants to make their own assessments prior to mediation. I accept the parties’ evidence that the prospects of settlement are enhanced by soft class closure as it creates a better platform from which to negotiate and to assess any settlement offers.
I am therefore satisfied that making soft class closure orders at this stage of the proceeding, particularly where the timing of the various steps is such as to facilitate a meaningful mediation, is appropriate to ensure that justice is done in the proceeding.
The only real difference between the parties in respect of soft class closure is the Soft Closure Date. Should it be 4 May 2026 (as the plaintiffs contend) or 20 July 2026 (as the defendants contend)? I turn to this issue now.
E.2 Should the Soft Closure Date be 4 May 2026 or 20 July 2026?
To reiterate, the proposal is that for group members to be entitled to participate in any in‑principle settlement reached between the parties by a specified date before trial, being the date I have described as the Soft Closure Date, they must have registered with Banton Group by 15 December 2025. By the opt‑out and registration procedure, the class is effectively closed for the purposes of such a settlement such that it consists only of those group members who have registered, and that closure has effect until the Soft Closure Date. If no in‑principle settlement is reached prior to the Soft Closure Date, then the class for settlement purposes is in effect re‑opened (other than for those who have opted out).
When the parties indicated that they were seeking a regime for opt‑out and registration, on my instruction my Associates sent the parties’ solicitors an email stating, inter alia, the following:
When preparing the proposed orders and opt‑out notice, the parties should take note of the approach taken by Nichols J at paragraph 20 of Nelson v Beach Energy Ltd [2025] VSC 339 regarding the end date for class closure being 2 weeks before the commencement of the trial. Absent compelling reasons to the contrary, her Honour intends to adopt that approach.
The defendants are content with that approach, hence their proposed Soft Closure Date of 20 July 2026, which is 2 weeks before trial. However, the plaintiffs are not content with that approach.
It is convenient to set out here the rationale given by Nichols J in Nelson v Beach Energy for the end date for soft class closure. In that case, the parties sought an end date of the day before trial for soft class closure — there was not a contest between them as to an earlier date. Her Honour stated:[7]
I accept that in the circumstances of this case it is appropriate to allow the class to remain closed until close to trial, for the reasons given by Ms Morrison and in the plaintiffs’ submissions. However, I will fix the end date for class closure at 2 weeks before the commencement of the trial. That will still allow 4 and a half months after mediation for the parties to negotiate. The parties’ lawyers’ experience is that meaningful negotiations are mostly likely to occur shortly before trial. That generally accords with the Court’s observations about the time at which settlements in group proceedings tend to occur. This is of course not a universal rule. By the date which is two weeks before the trial is due to commence the parties should well and truly have crystallised the issues and made assessments about whether and at what amount they are prepared to settle. ‘Re‑opening’ the class two weeks before the trial is to commence ought provide some incentive to the parties in the form of the opportunity to avoid a two week period of heavy costs expenditure. It will also assist the Court to reallocate available hearing time in the event the proceeding settles. The allocation of judicial resources between litigants is a matter properly to be taken into account in the administration of justice.
[7]Nelson v Beach Energy, [20].
E.2.1 Evidence and submissions
At the time the parties filed their evidence and submissions, the agreed mediation date was 17 February 2026. The plaintiffs wished to maintain that date, whereas the defendants wanted a later date which took into account the extension to 17 April 2026 for mediation to occur. The evidence and submissions were based on those alternative scenarios. The parties have since agreed to hold the mediation on 19 March 2026.
E.2.1.1 Plaintiffs’ evidence and submissions
The plaintiffs contend that the optimal point for class‑closure to end in this case is the date of 4 May 2026 (and not 20 July 2026), for four reasons.
First, earnest attempts will be made to settle the proceeding at the mediation scheduled for 17 February 2026 and, if a settlement is not reached, the parties will have 3 further months to attempt settlement (by 4 May 2026). That is a reasonable time to accommodate extended negotiations. Mr Chapple’s evidence at [13(d)] proceeds on a mistaken assumption in this respect. There, Mr Chapple identifies that the plaintiffs’ class closure period extends ‘only a few weeks beyond the mediation’ — but that is on the premise that the mediation date will be changed to April 2026, which the plaintiffs do not consent to.
Second, the defendants’ position is not entirely consistent with the position in Nelson v Beach Energy. The defendants propose that the mediation be held in April 2026 with the Soft Closure Date being 20 July 2026. This is still a period of 3 months to negotiate after mediation, it is a materially shorter window than that identified in Nelson v Beach Energy, and arises in a materially different context.
Third, the reality of this particular proceeding, perhaps in contrast to Nelson v Beach Energy, is that the parties’ trial preparations will begin in earnest well before 20 July 2026. Accordingly, there is no cost‑benefit to delaying the soft‑class closure period to a date so close to trial. Having the optimal date of 4 May 2026 allows the parties to mediate in February, attempt a resolution by May and then begin expending the enormous costs which attend a case of this kind. By contrast, a closure date of 20 July 2026 does not provide an incentive to avoid those costs.
Fourth, the reality of engaging in detailed negotiations immediately prior to trial is that it distracts the legal practitioners from preparing for trial and disengages those practitioners from trial preparations. It is in the best interests of group members for a clearly delineated mediation and registration period to occur well in advance of the trial. If settlement negotiations are not successful by 4 May 2026, it is arbitrary to suggest that the date of 20 July 2026 will provide a greater chance of settlement.
Whilst it is accepted that meaningful negotiations may sometimes occur shortly before trial, that is not always the case. That has particular force in this case, where the insurers for the defendants will need ample time to be advised, set claims reserves and obtain settlement approvals. In circumstances where the proceedings involved are complex and concern alleged damages in the many hundreds of millions of dollars, it would seem more likely that the plaintiffs will be concerned to have the matter prepared for trial immediately from May 2026 onwards, as significant trial preparation will be required (whilst of course remaining open to the possibility of a settlement).
In addition to these reasons for a Soft Closure Date of 4 May 2026, Ms Gallate deposes that this date has been chosen by the plaintiffs on the basis that it is possible, given the historical nature of the share register data and the fact that the Relevant Period for the claim was almost 10 years ago, that some shareholders will not receive the Notice in good time, or at all. She deposes that it would be unfair if the matter was not to settle before trial, for these group members to be shut out from any other potential settlement opportunity that might arise after 4 May 2026 and before the commencement of trial.
Ms Gallate acknowledges that the orders would be subject to further order, so that if any group member can demonstrate unfair prejudice to them in the operation of the orders, they may be able to apply to participate in the settlement reached by the Soft Closure Date.
E.2.1.2 Director Defendants’ evidence and submissions
The Director Defendants submit that as in Nelson v Beach Energy, extending class closure until 2 weeks before trial will maximise the window of opportunity for the parties to reach a settlement while assisting the Court to reallocate available hearing time if the proceeding settles.[8] To improve that opportunity, the defendants have proposed a mediation later than 17 February 2026 in light of the later trial commencement and timing of expert evidence, which affords further reason for following the approach in Nelsonv Beach Energy.[9]
[8]Chapple Affidavit [13(c)–(d)]; Nelson v Beach Energy, [14(d)] (third sentence), [20].
[9]Chapple Affidavit, [13(a)].
In respect of Ms Gallate’s contention that it would be unfair for group members to be shut out from potential settlement after 4 May 2026 if they do not receive notice in good time or at all, the Director Defendants note, as acknowledged by the plaintiffs, that any such group member who suffers unfair prejudice may be able to participate by leave under order 3 sought by the summons.
In respect of the plaintiffs’ contention that they will be concerned to have the matter prepared for trial from May 2026, the Director Defendants submit that the plaintiffs do not — and could not — suggest that settlement negotiations could not continue alongside such preparations, as they commonly do.[10] In any event, the risk of a group member receiving insufficient notice and the need for pre‑trial preparations are present in any class action.
[10]Chapple Affidavit, [13(c)].
The Director Defendants submit that neither of these contentions afford a compelling reason to depart from the approach in Nelson v Beach Energy.
E.2.1.2 KPMG’s submissions
KPMG submits that rather than the Soft Closure Date being 4 May 2026, it is more appropriate for the class to remain closed until close to trial, and 2 weeks prior to trial is an acceptable period. KPMG submits that the reasons advanced by the plaintiffs in support of the earlier date are not compelling.
First, as observed by Nichols J in Nelson v Beach Energy, meaningful negotiations, including in representative proceedings, most likely occur shortly before trial. By then, the issues in dispute should have crystallised and the parties should have made assessments about whether and at what amount they are prepared to settle.
Secondly, the reasons offered the plaintiffs for 4 May 2026 are not compelling:
(a)Ms Gallate states that the expiry of soft class closure on 4 May 2026 ‘allow[s] about 2.5 months for the parties to continue to negotiate a settlement following the mediation’.[11] However, assuming the mediation is rescheduled to closer to 17 April 2026, the period for continued negotiations following mediation could be as little as 2 weeks.
(b)Ms Gallate states that soft closure expiry on 4 May 2026 will ‘permit the parties to proceed with their trial preparations’.[12] However, this position erroneously assumes that trial preparation and settlement preparation are mutually exclusive. The more that trial preparation progresses, the better an understanding the parties have of the case, and the strengths and weaknesses of their position. Trial preparation facilitates settlement.
(c)Ms Gallate posits that fairness to group members favours the expiry of soft closure on 4 May 2026 because some shareholders will not receive the notice in good time, or at all, and should not be shut out of any other potential settlement opportunity.[13] This evidence should not be accepted. That some shareholders may not obtain the benefit of settlement is a consequence of soft class closure. However, as recognised by the plaintiffs, soft class closure facilitates meaningful settlement discussions. That may be undermined if the period of soft class closure ends 3 months in advance of trial on the basis that some group members may have missed out on registration.
[11]Gallate Affidavit, [35].
[12]Gallate Affidavit, [35].
[13]Gallate Affidavit, [36].
E.2.2 Consideration
I am not at all persuaded by the plaintiffs’ evidence and submissions in respect of 4 May 2026 being an appropriate Soft Closure Date.
It seems to me that the plaintiffs’ position has been at least partially informed by the previously agreed mediation date of 17 February 2026, which had been agreed when the deadline for mediation was 18 February 2026. However, that deadline was subsequently extended by the Court, at the request of the parties, to 17 April 2026. The plaintiffs’ position as to the Soft Closure Date does not appear to have taken that change into account, despite it occurring before their evidence and submissions were filed.
The parties have resolved their differences over the mediation date, such that it is to occur on 19 March 2026. That would leave about 6 weeks after the mediation for a settlement to be reached within the class closure period if the plaintiffs’ Soft Closure Date is chosen.
I do not consider that to be an adequate period, as:
(a)it is not uncommon for mediations to be extended beyond the day allocated and reconvened at a later time; and
(b)with matters as complex as this one, and particularly a group proceeding, settlement negotiations (whether within the parameters of a mediation or not) are sometimes quite protracted. It is in the interests of achieving justice in the proceeding and in keeping with the overarching obligations in the Civil Procedure Act 2010 (Vic) for sufficient time to be provided for this.
I do not accept that there is a material difference between the situation in this case and that which obtained in Nelson v Beach Energy. The issue there was not so much the amount of time between mediation and the re‑opening of the class, but there being time up until close to trial for a settlement to be reached while the class was still closed and at a time when the issues would have crystallised, such that the parties would still be motivated to reach a settlement but with a sufficient buffer before trial (which was 2 weeks) to avoid heavy costs expenditure and allow for judicial resources to be re‑allocated if the proceeding settled. Further, I do not think there is any material difference between this case and Nelson v Beach Energy insofar as the time at which trial preparations are likely to begin in earnest.
I do not accept the plaintiffs’ position that there is no cost benefit to delaying the Soft Closure Date to 20 July 2026. Of course, the parties will need to begin their trial preparations in earnest well before 20 July 2026. That is the case, no matter what the Soft Closure Date is. To the extent that avoiding costs is a significant motivating factor for settlement, that will be present no matter when the class re‑opens. Further, I do not accept that engaging in detailed negotiations immediately prior to trial will distract the legal practitioners from preparing for trial. Frankly, these are experienced practitioners who ought to be able to manage settlement negotiations alongside trial preparation, and do so in a manner which does not disadvantage group members.
Maximising the opportunities for settlement, so as to enable a settlement that is in the interests of group members and is fair and reasonable (which it must be in order to obtain court approval) is clearly something which is appropriate or necessary to ensure that justice is done in the proceeding. In my view, a Soft Closure date some 3 months before trial does not further this purpose. I accept the defendants’ submissions that trial preparation often facilitates settlement.
I do not accept Ms Gallate’s evidence as set out at paragraph 40 above. Indeed, I reject any submission based on it. I consider it to be a remarkable contention that, if accepted, serves to undermine the whole soft class closure sought by the plaintiffs in the first place. If concerns about whether group members will receive the Notice are such as to justify a Soft Closure Date of 4 May 2026, then how is it that those concerns do not call into question the fairness of approving an in‑principle settlement reached prior to that date?
The plaintiffs’ position in this regard raises other problems which they have not grappled with at all. By way of example:
(a)if the class is re‑opened on 5 May 2026, then any settlement negotiations after that time would be occurring without the benefit of having any reliable information about the likely quantum of all group member claims, as opposed to those of registered group members. All of the aspects of soft class closure which experience shows facilitate settlement negotiations and the robustness and reliability of any settlement will no longer be present; and
(b)if a settlement is reached between 5 May 2026 and the trial, what would then need to occur? Arguably, a further registration process and class closure may need to occur, or application made to extend the class closure period. As was observed by Nichols J in Nelson v Beach Energy, distributing multiple notices or closing the class multiple times would increase the time, cost and effort involved in notice distribution and group member registration.
The approach taken by Nichols J in Nelson v Beach Energy to the end date for soft class closure being 2 weeks before trial is a sound and sensible one. I agree with her Honour that it will ordinarily be in the interests of the parties and the Court, including other litigants and proceedings who may benefit from the re‑allocation of judicial resources, for the soft closure to end shortly before trial but not so close to trial (that is, the day before) that those advantages cannot easily be realised. Of course, the circumstances of individual cases must be taken into account, but absent compelling reasons to the contrary, I agree that the approach in Nelson v Beach Energy has much to commend it. In the circumstances of this case, not only are there no compelling reasons to depart from that approach, there are compelling reasons to follow it.
Soft class closure, which has the effect of preventing unregistered group members from participating in a settlement reached before the Soft Closure Date, inevitably means that some group members will miss out. This is not a reason to set the Soft Closure Date unrealistically early vis-à-vis the trial date.
Rather, it is a reason for the Court to ensure, insofar as is possible, that the Notice to group members of the opt‑out and registration process provides sufficient information to group members to enable them to make an informed decision about whether they wish to opt out or register and that it is distributed in a manner which maximises the chances that the Notice will come to the attention of group members.
I will turn to those issues next, but it is important that I note that there is another protective mechanism here for group members. The soft closure order will state that group members who do not register by the Class Deadline will remain a group member for all purposes of the proceeding but shall not, without leave of the Court, be permitted to seek any benefit pursuant to a settlement reached prior to the Soft Closure Date. This means that if any group member can demonstrate unfair prejudice to them in the operation of the soft closure order, they may apply to participate in the settlement.
F Form of notice
The Court’s practice note for the conduct of group proceedings, SC Gen 10 – Group Proceedings (Class Actions) (2nd Revision) (Practice Note), provides that an opt‑out notice may not be sent to group members without prior order of the Court approving its form, content, manner of distribution, and manner of delivery of a completed notice of opting out. The Practice Note states that the opt‑out notice should, where appropriate, be in the same form as the standard form opt‑out notice available on the Court’s website. The opt‑out notice should:
(a)use plain language and give a balanced, succinct description of the claims and defences in the proceeding;
(b)inform group members of their right to opt out of the proceeding by the Class Deadline and clearly describe the consequences of remaining a group member, or alternatively opting out of the proceeding, which should include a succinct explanation of how a judgment or settlement in the proceeding will or may preclude group members from relying on the same or related claims or defences in other proceedings;
(c)alert group members to the fact and consequences of any costs agreement or litigation funding arrangement made or intended for the proceeding; and
(d)be sent to group members, published or broadcast via media which are calculated to best achieve the effective dissemination of the notice among group members in the most cost‑effective way.
While not expressly dealt with in the Practice Note, it has become common practice in the Court for notices regarding registration and soft class closure to be approached in a similar manner to that described above.
I have reviewed the draft Notice provided by the plaintiffs, which the defendants have had the opportunity to comment on. Save for the issue of the Soft Closure Date, the defendants’ comments are not controversial.
I am satisfied that the draft Notice substantially meets the requirements set out in the Practice Note, modified to include the registration and soft class closure requirements. In particular, it sets out the consequences of opting out or not, and of registering or not, which are important matters for group members to understand when deciding what they wish to do. I have made some minor amendments to the draft Notice, including to reflect current practice of the Court’s Registry in respect of the manner of submitting opt‑out notices to the Court.
G Distribution/publication of notice
The Gallate Affidavit describes the data obtained by Banton Group from Boardroom Pty Ltd (via the liquidators of Arrium), the external company providing share registry services to companies, including Arrium, regarding trades made by shareholders in Arrium during the Relevant Period (Boardroom Share Register Data). Ms Gallate deposes that the Boardroom Share Register Data contains the following information for the Relevant Period:
(a)Holder ID;
(b)the named shareholder;
(c)the postal box or physical address of the named shareholder;
(d)opening and closing balances;
(e)the date of purchase or sale; and
(f)the quantity of shares purchased or sold.
Ms Gallate deposes that the plaintiffs propose to issue the Notice to potential group members in the following manner:
(a)by sending a copy of the Notice to all shareholders at the addresses listed in the Boardroom Share Register Data;
(b)by posting a copy of the Notice on the website of Banton Group;
(c)by the Court publishing a copy of the Notice on its website;
(d)by sending the Notice to potential group members who have already registered their interest in the proceeding with Banton Group; and
(e)by advertisements placed in the Australian Financial Review and metropolitan newspapers in each State capital city in Australia over the course of a 2 week period, being in the first week of registration and then again 3 to 4 weeks prior to the Class Deadline.
Ms Gallate also deposes that in addition to the steps described in the previous paragraph, Banton Group intends to make its own enquiries of any known institutional investors, superannuation funds, stock brokers and other entities within the industry that may have held Arrium shares that were acquired during the Relevant Period, either on their own account or for clients, so as to bring the Notice to the attention of as many potential group members as possible.
I am satisfied that through carrying out the steps described in paragraph 67 above, group members will receive appropriate and sufficient notice of opt‑out, registration and class closure. Given the age of the contact information on the Boardroom Share Register Data, I think it is necessary to include widespread advertising in the manner proposed, in addition to the personal notice sent to each potential group member. I will make one change to the proposed advertising regime: in addition to each State capital city, the advertisements are also to be placed in newspapers in each Territory capital city. I also consider it appropriate for Banton Group to provide the parties and the Court with evidence as to the steps it has taken as described in paragraph 68 above, so as to enable an assessment to be made as to the publication and distribution of the Notice.
H Conclusion
Orders will be made in accordance with these reasons.
SCHEDULE OF PARTIES
| S ECI 2020 03281 | |
| BETWEEN: | |
| ANTHONY BOGAN | First Plaintiff |
| MICHAEL THOMAS WALTON | Second Plaintiff |
| - v - | |
| THE ESTATE OF PETER JOHN SMEDLEY (DECEASED) | First Defendant |
| ANDREW GERARD ROBERTS | Second Defendant |
| PETER GRAEME NANKERVIS | Third Defendant |
| JEREMY CHARLES ROY MAYCOCK | Fourth Defendant |
| KPMG (A FIRM) (ABN 51 194 660 183) | Fifth Defendant |
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