FEDERAL COURT OF AUSTRALIA
Bradshaw v BSA Limited [2021] FCA 1080
File number: VID 488 of 2020 Judgment of: BROMBERG J Date of judgment: 7 September 2021 Catchwords: PRACTICE AND PROCEDURE – Representative proceedings – communications by respondent to group members – whether the respondent made statements that may mislead group members and undermine integrity of opt out process – application by applicant for a corrective notice to be distributed to class members and for a communication protocol – application by respondent for an order permitting a notice to be distributed during opt out process Legislation: Fair Work Act 2009 (Cth) Cases cited: Davaria Pty Limited v 7-Eleven Stores Pty Limited [2018] FCA 984
Division: Fair Work Division Registry: Victoria National Practice Area: Employment and Industrial Relations Number of paragraphs: 34 Date of hearing: 6 September 2021 Counsel for the Applicants: Mr J Dooley Solicitor for the Applicants: Shine Lawyers Counsel for the Respondent: Mr R Craig QC Solicitor for the Respondent: Johnson Winter & Slattery ORDERS
VID 488 of 2020 BETWEEN: PAUL BRADSHAW
First Applicant
SCOTT UREN
Second Applicant
AND: BSA LIMITED (ACN 088 412 748)
Respondent
ORDER MADE BY:
BROMBERG J
DATE OF ORDER:
7 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The Applicants cause the Notice attached as Annexure A to these orders (Notice) to be emailed forthwith and cause the Notice to be posted forthwith by a third party mail house to all known group members, including to any such person who may have filed an Opt Out Notice with the Court.
2.Each of the Respondent and solicitors for the Applicants cause the Notice to be posted in a prominent position on their respective websites including at for the duration of the opt-out period until 25 September 2021.
3.The costs of the publication of the Notice referred to in Orders 1 and 2 is to be paid for by the Applicants on the basis that the question as to whether the Respondent should reimburse the Applicants for those costs is reserved.
4.Unless the Notice referred to in orders 1 and 2 is forthwith attached to the document described in the Court’s reasons for judgment as the “FAQ Document” displayed on the website(s) of BSA, including at the Respondent forthwith remove that document from its website(s).
5.Until 25 September 2021, the Parties and Shine Lawyers shall comply with the Communication Protocol at Annexure B to these orders.
6.The interlocutory application of the Respondent filed on 3 September 2021 is dismissed.
7.The costs of the Applicants’ interlocutory application of 1 September 2021 and the costs the Respondent’s interlocutory application of 3 September 2021 are reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMBERG J:
The fundamental question raised by this proceeding is whether or not the applicants and group members (the workers) provided their services…
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- AGLC
- Bradshaw v BSA Limited [2021] FCA 1080
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- [2021] FCA 1080
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CaseChat Overview and Summary
The primary legal issues the court had to resolve were whether the respondent's communications to the class members were misleading and whether a corrective notice should be issued. The court had to determine whether the respondent's actions constituted misleading or deceptive conduct under the Australian Consumer Law, which could undermine the integrity of the opt-out process. Furthermore, the court had to decide whether the proposed corrective notice and communication protocol were appropriate measures to address the alleged misleading conduct. The court also had to consider the respondent's application for an order permitting a notice to be distributed during the opt-out process and whether such an order would be appropriate.
The court found that the respondent had made misleading statements to class members, which could potentially undermine the integrity of the opt-out process. The misleading conduct related to the respondent's communications regarding the availability and benefits of settling the class action. The court concluded that the proposed corrective notice and communication protocol were appropriate measures to address the misleading conduct. The court dismissed the respondent's application for an order permitting a notice to be distributed during the opt-out process, finding that it would not be appropriate. The court ordered the applicants to cause the corrective notice to be emailed and posted to all known group members, including those who had filed an opt-out notice with the Court. The court also ordered the parties and their solicitors to comply with the communication protocol until the end of the opt-out period.
The court made several orders to address the misleading conduct and ensure the integrity of the opt-out process. The applicants were ordered to cause the corrective notice to be emailed and posted to all known group members, including those who had filed an opt-out notice with the Court. The court also ordered the parties and their solicitors to comply with the communication protocol until the end of the opt-out period. The costs of publishing the corrective notice were to be paid for by the applicants, with the question of whether the respondent should reimburse the applicants for those costs reserved. The court ordered the respondent to remove a document from its website if the corrective notice was not attached to it. Finally, the court dismissed the respondent's interlocutory application and reserved the costs of both the applicants' and the respondent's interlocutory applications.
Orders
Orders of the court
1. The Applicants cause the Notice attached as Annexure A to these orders (Notice) to be emailed forthwith and cause the Notice to be posted forthwith by a third party mail house to all known group members, including to any such person who may have filed an Opt Out Notice with the Court.
2. Each of the Respondent and solicitors for the Applicants cause the Notice to be posted in a prominent position on their respective websites including at https://www.bsatoolbox.com/ for the duration of the opt-out period until 25 September 2021.
3. The costs of the publication of the Notice referred to in Orders 1 and 2 is to be paid for by the Applicants on the basis that the question as to whether the Respondent should reimburse the Applicants for those costs is reserved.
4. Unless the Notice referred to in orders 1 and 2 is forthwith attached to the document described in the Court’s reasons for judgment as the “FAQ Document” displayed on the website(s) of BSA, including at https://bsatoolbox.com/, the Respondent forthwith remove that document from its website(s).
5. Until 25 September 2021, the Parties and Shine Lawyers shall comply with the Communication Protocol at Annexure B to these orders.
6. The interlocutory application of the Respondent filed on 3 September 2021 is dismissed.
7. The costs of the Applicants’ interlocutory application of 1 September 2021 and the costs the Respondent’s interlocutory application of 3 September 2021 are reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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