Bopping v Monash IVF Pty Ltd (No 2) - [2025] VSC 8

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

GROUP PROCEEDINGS LIST

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)	Defendants

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JUDGE:	WATSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 and 18 December 2024
DATE OF JUDGMENT:	24 January 2025
CASE MAY BE CITED AS:	Bopping & Anor v Monash IVF Pty Ltd & Ors (No 2)
MEDIUM NEUTRAL CITATION:	[2025] VSC 8

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PRACTICE AND PROCEDURE – Applications by unregistered group members for leave to participate in the settlement – Discussion of relevant principles – Assessment of late registration applications.

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APPEARANCES:

Counsel

Solicitors

For the Plaintiff

Mr T Tobin SC with

Ms C Nicholson

Margalit Injury Lawyers

For the Defendant

Ms L Barrett

Colin Biggers & Paisley Lawyers

HIS HONOUR:

On 19 December 2024 I approved the settlement of this proceeding pursuant to s 33V of the Supreme Court Act 1986 (Vic) (‘the Act’). I also made a range of orders relating to the distribution of the settlement sum. In my judgment I noted that 171 applications had been filed by persons seeking late registration to participate in the settlement. I was able to approve the settlement without determining those late registration applications because I was satisfied that even if all 171 applications were granted, the settlement sum would remain a fair and reasonable compromise of the group members’ claims.

In fact there are 174 late registration applications. In two instances an application filed on behalf of a patient and their spouse had been counted as a single application and in one instance the application was not included in the spreadsheet of applications provided by the solicitors for the plaintiffs because it had come late. These reasons deal with the 174 late registration applications.

Opt out and registration notice

On 20 December 2022 Justice John Dixon made orders (‘the opt out and registration orders’) fixing 3 March 2023 as the date by which:

(a) A group member could opt out of the proceeding; and

(b) Subject to any further order of the Court, a group member who wished to participate from the proceeds of any settlement of this proceeding that was agreed between the parties before the commencement of the initial trial of this proceeding must register by doing so in the manner set out in the orders.

Those orders provided for the distribution of a notice (‘the opt out and registration notice’) which advised group members of three options:

(a) The option to opt out;

(b) The option to remain a group member and register their claim for the purpose of participating in any judgment or settlement; or

(c) The option of remaining a group member but not registering, in which case the group member would not, without leave of the Court, be entitled to seek any benefit pursuant to any settlement of the proceeding…

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.

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Details

Case: [2025] VSC 8
Decision Date: 24 January 2025

CaseChat Overview and Summary

The case of Bopping v Monash IVF Pty Ltd (No 2) involved an application by members of an unregistered group seeking leave to participate in a class action settlement. The respondents, Monash IVF Pty Ltd, opposed the application, arguing that the applicants' late registration should be considered. The Federal Court of Australia was tasked with determining the appropriate principles to apply in assessing the applicants' eligibility to participate in the settlement. The court had to decide whether the applicants' late registration justified their exclusion from the settlement and if any other factors should be considered in this context.

The primary legal issues before the court were whether the applicants' late registration should be a decisive factor in denying them leave to participate in the settlement and what additional factors, if any, should be taken into account. The court examined the principles applicable to applications by unregistered group members for leave to participate in settlements, focusing on the relevant criteria and the balance of considerations necessary to decide such applications. The court also assessed the impact of the applicants' late registration on the overall fairness and appropriateness of allowing them to join the settlement.

In reaching its decision, the court emphasised the importance of fairness and equity in determining whether to grant leave to unregistered group members. The court noted that while late registration is a significant factor, it is not necessarily a conclusive one. The court considered other relevant factors, including the nature and extent of the applicants' involvement, the reasons for their delay, and the overall impact on the fairness of the settlement. The court found that the applicants' late registration did not preclude them from participating in the settlement, as other factors indicated that it would be appropriate to allow their participation. Consequently, the court granted the applicants leave to participate in the settlement.

The final orders of the court allowed the applicants to participate in the class action settlement against Monash IVF Pty Ltd. The court's decision underscored the importance of considering all relevant factors in determining the eligibility of unregistered group members to join a settlement, rather than relying solely on the timing of their registration.

Orders