Bopping v Monash IVF Pty Ltd - [2024] VSC 785

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
GROUP PROCEEDINGS

S ECI 2020 04761

DANIELLE BOPPING	First Plaintiff
- and -
MICHELLE LOUISE PEDERSEN	Second Plaintiff
- v -
MONASH IVF PTY LTD (ACN 006 942 990) & ORS (according to the attached Schedule)	Defendant

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JUDGE:	WATSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 December 2024
DATE OF JUDGMENT:	19 December 2024
CASE MAY BE CITED AS:	Bopping & Anor v Monash IVF Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2024] VSC 785

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REPRESENTATIVE PROCEEDINGS – Part 4A Group proceeding – Application for approval of settlement – Whether proposed settlement is fair and reasonable – Relevant considerations – Settlement approved – Settlement Distribution Scheme approved – Appointment of Scheme Administrator – Approval for payment of legal costs from settlement sum – Whether settlement may be approved prior to late registrant determinations – Supreme Court Act 1986 (Vic) Part 4A, ss 33V.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr T Tobin SC with Ms C Nicholson	Margalit Injury Lawyers
For the Defendants	Ms L Barrett	Colin Biggers & Paisley Lawyers

HIS HONOUR:

This is an application for the approval of a proposed settlement in a class action. The proposed settlement should be approved and orders made with respect to distribution of the money to be paid under the settlement.

The key questions

In the circumstances of this approval application, the matters I need to consider are:

(a) Whether the amount group members will receive under the proposed settlement is fair and reasonable having regard to:

(i) A reasonable estimate of the value of their claims;

(ii) The risks in the proceeding; and

(iii) The benefits of certainty and payment earlier than proceeding to judgment;

(b) Whether the releases provided by the group members are appropriate;

(c) Whether the proposed Settlement Distribution Scheme is fair and reasonable;

(d) Whether Michel Margalit of Margalit Injury Lawyers should be appointed Administrator of the Settlement Distribution Scheme;

(e) Whether proposed deductions from the settlement sum for a payment to the plaintiffs, legal costs and settlement administration costs are appropriate; and

(f) Whether a number of group members who failed to register in accordance with court orders and who now seek to be included as registered group members (‘late registrants’) should be permitted to participate in the settlement.

For the reasons which follow, the answers to the above questions are:

(a) Yes.

(b) Yes.

(c) Yes.

(d) Yes.

(e) I would approve:

(iv) payments to the plaintiffs in the following sums:

(A) Ms Bopping $35,000; and

(B) Ms Pedersen $35,000;

(v) the Plaintiffs’ legal costs in the sum of $11,385,300.69;

and defer any assessment of reasonable administration costs at this stage.

(f) I will separately consider the late registration applications.

The evidence before me comprises the following material filed on behalf of the plaintiffs:

(a) Four affidavits of Janine McIlwraith dated 24 September 2024, 1 October 2024, 14 October 2024 and 17 December 2024. Three of those…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bopping v Monash IVF Pty Ltd

Details

AGLC: Bopping v Monash IVF Pty Ltd [2024] VSC 785
Case: [2024] VSC 785
Decision Date: 19 December 2024

CaseChat Overview and Summary

The case of Bopping v Monash IVF Pty Ltd involved a group proceeding in the Supreme Court of Victoria. The plaintiffs, led by Bopping, brought the action against Monash IVF Pty Ltd for alleged breaches of consumer guarantees under the Australian Consumer Law, arising from the sale of sperm and eggs by Monash IVF. The dispute centred on the approval of a proposed settlement agreement, and whether it was fair and reasonable for the class of plaintiffs, as well as the broader implications for the administration of the settlement and distribution of funds.

The primary legal issues before the court were whether the proposed settlement was fair and reasonable, and whether it was permissible to approve the settlement before final determinations were made on late registrants. The court also had to consider the appropriate distribution of settlement funds and the appointment of a Scheme Administrator to oversee this process. Additionally, the court examined whether legal costs could be paid from the settlement sum and whether the settlement could be approved before the late registrants were determined.

The court found that the proposed settlement was fair and reasonable, taking into account the potential benefits to the plaintiffs, the risks of proceeding to trial, and the complexity of the case. The court also approved the Settlement Distribution Scheme, which outlined how the settlement funds would be distributed to the class members. The appointment of a Scheme Administrator was deemed necessary to ensure the proper administration and distribution of the settlement funds. The court further ruled that it was appropriate to approve the settlement before the late registrants were determined, as this would not prejudice the rights of any class member. Finally, the court authorised the payment of legal costs from the settlement sum, finding that this was consistent with the overarching goal of achieving a fair and reasonable outcome for all parties.

The court's final orders included the approval of the proposed settlement, the Settlement Distribution Scheme, the appointment of a Scheme Administrator, and the authorisation for the payment of legal costs from the settlement sum. These orders provided a resolution to the group proceeding, ensuring that the plaintiffs' claims could be efficiently and fairly resolved, while also safeguarding the interests of all parties involved.

Orders