Carpenders Park Pty Ltd (as trustee of the Carpenders Park Pty Ltd Staff Superannuation Fund) v Sims Limited

Carpenders Park Pty Ltd (as trustee of the Carpenders Park Pty Ltd Staff Superannuation Fund) brought a representative proceeding against Sims Limited in the Federal Court of Australia. The applicant sought to amend the description of the group of persons included in the proceeding to exclude members who had not taken the positive step of registering a claim in response to a notice under section 33X of the Federal Court of Australia Act 1976 (Cth). The application was made pursuant to section 33K of the Act, which permits amendments to the description of the group if the amendment is not unfair, unreasonable, or adverse to the interests of the group members.

The court had to determine whether the representative party could amend the group description as it wished, and whether group members could be required to manifest a positive interest in pursuing the claim before judgment or settlement. The court also considered whether the statutory powers in Part IVA and section 22 of the Federal Court of Australia Act 1976 (Cth) should be exercised to exclude group members because if excluded they could commence their own proceedings due to an extended limitation period pursuant to section 33ZE. The court had to determine whether the exclusion of group members was consistent with Part IVA and the court's duty to avoid multiplicity of proceedings and to dispose of matters completely and finally.

The court held that an application under section 33K to make an amendment that would exclude persons as group members required the interests of those group members to be taken into account to ensure justice was done. The persons affected by this application had chosen to exercise their right under section 33J not to opt out and to remain in the proceeding. The court did not consider it to be in the interests of justice or in accordance with the court’s duty under section 22 to make the order for amendment to the group description. The court dismissed the interlocutory application with costs.

The court held that Part IVA of the Federal Court of Australia Act 1976 (Cth) was intended to ensure that a representative proceeding under that Part would be an opt-out, not an opt-in, action. The court held that the scheme of Part IVA is inconsistent with an interpretation of section 183 as empowering the court to make orders for pre-settlement class closure. The court held that the ordinary and natural meaning of the words “so as to alter the description of the group” in section 33K(1) appears to permit an amendment to narrow it, for instance if particular claims are settled or resolved in a way that requires the group description to be amended. The court assumed, without deciding, that section 33K would permit an amendment of the kind Carpenders sought.

The court dismissed the interlocutory application filed on 27 August 2020. The applicant was ordered to pay the respondent’s costs. Order 20 made on 21 August 2020 was varied so that the question of how the costs of the Contradictor and any junior counsel chosen by the Contradictor will be treated in a taxation was reserved for further order.