Clarke v JB Hi-Fi Group Pty Ltd - [2025] VSC 664

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

S ECI 2023 05830

Jeremey Clarke	Plaintiff
v
JB Hi-Fi Group Pty Ltd (ACN 093 114 286)	Defendant

---

JUDGE:	Delany J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 October 2025; aide memoires dated 7 and 9 October 2025.
DATE OF RULING:	23 October 2025
CASE MAY BE CITED AS:	Clarke v JB Hi-Fi Group Pty Ltd
MEDIUM NEUTRAL CITATION:	[2025] VSC 664

---

PRACTICE AND PROCEDURE — Group proceedings — ‘Soft class closure’ orders — Whether appropriate or necessary to ensure that justice is done — Lack of available contact information for approximately 60 percent of group members — No satisfactory proposal for communicating notice of class closure to those persons — Class closure unlikely to assist parties to resolve proceedings — Supreme Court Act 1986 (Vic), ss 33V, 33X, 33Y, 33ZF, 33ZG – Lendlease Corporation Ltd v Pallas (2025) 423 ALR 23; [2025] HCA 19; Fox v Westpac; O’Brien v ANZ; Nathan v Macquarie [2023] VSC 414; Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd (2017) 252 FCR 1, applied; Anderson-Vaughan v AAI Limited [2024] VSC 65, referred to.

---

APPEARANCES:

Counsel

Solicitors

For the Plaintiff

Rachel Doyle SC with

James Page

Maurice Blackburn

For the Defendant

Andrew McRobert

Herbert Smith Freehills Kramer

Contents

A.. The application

B.. The legislation and the principles

C.. The evidence and the submissions

C.1 JB Hi-Fi submissions
C.2 The plaintiff’s submissions

D.. Consideration

E... Disposition

HIS HONOUR:

A The application

These reasons concern an application by the defendant (‘JB Hi-Fi’) for ‘soft class closure’ in a group proceeding pursuant to ss 33ZF and 33ZG of the Supreme Court Act 1986 (Vic) (‘Act’).
A soft class closure order is used to describe an order which requires group members to register as a precondition to an entitlement to share in a settlement reached at or following a mediation and prior to a date shortly prior to the commencement of the trial. A soft class closure order does not remove group members who do not register from the represented class and does not affect the entitlement of any unregistered group member to benefit from any judgment in favour of the plaintiff or any settlement arrived at after the end of the soft class closure period.[1]
[1]See the description of the effect of a soft class closure order by Murphy and Lee JJ in Parkin v Boral Ltd [2022] FCAFC 47; (2022) 291 FCR 116.
In Melbourne City Investments Pty Ltd v Treasury Wine Estates Limited,[2] the Full Court of the Federal Court of Australia said:[3]
[74]… if a class closure order operates to facilitate the desirable end of settlement, it may be reasonably adapted to the purpose of seeking or obtaining justice in the proceeding and therefore appropriate under s 33ZF of the Act. The courts have accepted on numerous occasions that, in order to facilitate settlement, it is appropriate to make orders…

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.

Keep reading for free

Create a free CaseChat account to read Clarke v JB Hi-Fi Group Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] VSC 664
Decision Date: 23 October 2025

CaseChat Overview and Summary

The matter of Clarke v JB Hi-Fi Group Pty Ltd was heard by the Supreme Court of Victoria. The dispute involved a representative action on behalf of a class of consumers who had made credit card purchases from JB Hi-Fi, seeking compensation for alleged breaches of the Australian Consumer Law. The key issue before the court was whether the proposed 'soft class closure' orders were appropriate or necessary to ensure that justice was achieved in the proceedings.

The legal issues centred on the application of the Supreme Court Act 1986 (Vic), sections 33V, 33X, 33Y, 33ZF, and 33ZG, which provide for the management of group proceedings. The court needed to determine whether the lack of contact information for approximately 60 percent of the class members and the absence of a satisfactory proposal for notifying these members of the class closure were sufficient grounds for the orders. Additionally, the court examined whether the class closure would assist in resolving the proceedings.

The court examined the case law and found that the criteria for granting such orders were stringent. It relied on the decision in Lendlease Corporation Ltd v Pallas, which emphasised the importance of ensuring justice is done for all parties. The court also considered the principles set out in Fox v Westpac; O’Brien v ANZ; Nathan v Macquarie, where the importance of communication with all class members was highlighted. Furthermore, the court referred to Anderson-Vaughan v AAI Limited, which underscored the necessity for a viable method of notifying absent class members. Given the significant proportion of class members without contact information and the absence of a suitable notification plan, the court concluded that the proposed class closure was neither appropriate nor necessary.

In light of the above, the court refused the application for 'soft class closure' orders. The court ordered that the representative action could continue, but it mandated that the applicants take steps to ensure adequate communication with all class members, particularly those without available contact information. The court also directed that a specific plan for notifying absent members of any future class closure be developed and submitted for approval.

Orders