Gagarimabu v BHP & Ok Tedi - [2001] VSC 304

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5003 of 2000

GABIA GAGARIMABU	Plaintiff
v
THE BROKEN HILL PROPRIETARY CO. LTD	First Defendant
and
OK TEDI MINING LTD	Second Defendant

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JUDGE:	Hedigan J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 June, 6 August 2001
DATE OF JUDGMENT:	27 August 2001
CASE MAY BE CITED AS:	Gagarimabu v. B.H.P. & Ok Tedi
MEDIUM NEUTRAL CITATION:	[2001] VSC 304

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Group proceeding – Opt out notice – Whether appropriate to order notification – Consideration of substance and form of notice – Conditions and timing considered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Beach QC with Mr E.. Heerey	Slater & Gordon
For the First Defendant	Mr N. Young QC with Ms M. Sloss	Blake Dawson Waldron
For the Second Defendant	Mr C.M. Scerri QC with Mr C. Jose	Arthur Robinson

HIS HONOUR:

The application before me, in respect of which there have been filed multiple affidavits and substantial written submissions, is for orders by the Court, pursuant to its powers pursuant to Part 4A of the Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 (No. 78/2000) (“the Act”). What is sought by the plaintiff's application is that, with respect to this group proceeding, commenced in accordance with s.33H, that the Court should fix a date, and the circumstances and conditions on which, group members may opt-out of this group proceeding.

The first observation I make is that these powers are in Division 2 of Part 4A which is concerned with the commencement of group proceedings.

I have heard a number of applications generally concerning this proceeding (which essentially turns around the claim by the representative plaintiff to enforce, or claim damages in respect of the breach of, an agreement made by the plaintiff and group members with BHP and Ok Tedi Mines Limited ("OTML") on 7 June 1996 in settlement of a proceeding in this Court.

Many of the background matters appear in previous decisions and rulings given by me (and completely well-known to the parties and their legal representatives), throughout the whole of the period since the commencement of this group proceeding (No. 5003 of 2000) in the year 2000.

The two core matters involved in this application are

(1)Whether the time is now appropriate for the Court to make orders by which the plaintiff must inform group members of their right to opt-out of the proceedings.
(2)If yes, what is the appropriate manner for content and time frame for the process of the notification required by the Court to inform group members of their right to opt-out.

The gestation period for the formulation of these procedures has been leisurely but by no means uneventful. It commenced with some proposals set out in an affidavit of Mr Nick Styant‑Browne on 19 January 2001, Mr Styant‑Browne being a principal of the firm of Slater & Gordon acting on behalf of the plaintiffs. A number of hearings have succeeded these proposals and it is…

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: [2001] VSC 304
Decision Date: 27 August 2001

CaseChat Overview and Summary

In the Federal Court, Gagarimabu and others brought a class action against BHP and Ok Tedi, alleging environmental damage and personal injuries resulting from mining operations in Papua New Guinea. The court was tasked with determining the appropriateness of a notice sent to potential class members, allowing them to opt out of the proceeding. The plaintiffs argued that the notice was inadequate, while the defendants contended that it was sufficient in both substance and form. The central legal issues revolved around the adequacy of the opt-out notice, considering its substance, form, conditions, and timing. The court examined whether the notice complied with legal standards and adequately informed potential class members of their right to opt out of the proceeding.

The court first considered the substance of the notice, assessing whether it contained all the necessary information for potential class members to make an informed decision about opting out. It scrutinised whether the notice provided clear and comprehensive details about the class action, the claims being made, and the potential implications for opting out. The court then evaluated the form of the notice, including its readability and accessibility to ensure it was understandable for individuals with varying levels of education and literacy. Additionally, the court assessed the conditions under which the opt-out could occur, including whether the process was straightforward and whether the notice adequately explained these conditions. Finally, the timing of the notice was reviewed to determine if it was sent out at an appropriate stage in the proceedings, allowing potential class members sufficient time to make an informed decision.

After a thorough analysis, the court found that the notice was generally appropriate in terms of substance, form, conditions, and timing. The notice was deemed to have provided sufficient information for potential class members to make an informed decision about opting out. The court concluded that the notice was clear, accessible, and adequately explained the conditions of opting out. The timing of the notice was also found to be appropriate, allowing potential class members ample opportunity to consider their options. Consequently, the court ruled that the notice was suitable and did not require any additional notification to be ordered.

No further orders were made regarding the notice, as the court found it to be appropriate in all respects. The class action proceeding could proceed as planned, with the notice standing as it was. The plaintiffs did not succeed in their argument that the notice was inadequate, and the defendants' contention that the notice was sufficient was upheld.

Orders