Fox v Westpac; O'Brien v ANZ; Nathan v Macquarie

In the case of Fox v Westpac; O'Brien v ANZ; Nathan v Macquarie, the plaintiffs, acting as representatives of class members, sought orders for the closure of "soft" class proceedings against financial institutions. The defendants contested the class closure and raised concerns about the mechanisms for distribution of any settlement and the production of group member data. The Supreme Court of Victoria was tasked with determining the appropriate procedures and ensuring that justice was done for all parties involved.

The court had to decide several key issues, including whether class members must register to be entitled to a distribution of any settlement reached through judicial mediation. The court also needed to consider the balance of interests between the parties and whether class closure would assist in resolving the proceedings. Additionally, the court examined whether personal notice to class members was reasonably practicable and not unduly expensive, and whether the defendants were required to produce group member data to assist with the opt-out and registration processes. Finally, the court considered the appropriate allocation of costs associated with the notices.

The court found that the plaintiffs' representatives should have ensured that the class members were informed about the potential distribution of any settlement through registration, but this was not a necessary condition for class closure. The court distinguished this case from Kamasaee v Commonwealth of Australia, where registration was deemed necessary. The court also held that the defendants were required to produce group member data in compliance with APRA Prudential Standard CPS 234, and that personal notice to class members was reasonably practicable and not unduly expensive, even if it required the use of multiple communication methods. The court exercised its discretion to order that the costs of the notices were to be borne equally by the parties.

In conclusion, the court granted the plaintiffs' applications for "soft" class closure orders, ordered judicial mediation, and directed the defendants to produce group member data. The court also ordered that personal notice be given to class members using multiple media, and that the costs of the notices were to be borne equally by the parties.