Lenthall v Westpac Banking Corporation (No 2)

In the Federal Court of Australia, Lenthall initiated proceedings against Westpac Banking Corporation. The dispute centred around a common fund order that was made beyond the court's power and had ceased to be effective. The court was tasked with determining whether it had the authority to approve a notice that would inform the group members of Lenthall's intention to seek an order at the conclusion of the proceeding. This order would aim to distribute the burden of costs, fees, and all other expenses equitably among all persons who had benefitted from the class action. The court also had to consider whether the decision in BMW Australia Ltd v Brewster precluded it from approving the issuance of such a notice, and if it should exercise its discretion to refuse to issue the notice.

The court considered the implications of the BMW Australia Ltd v Brewster decision, which held that the court lacked the power to order the distribution of a common fund. The court examined whether this decision precluded it from approving a notice aimed at distributing the burden of costs equitably among group members. The court recognised the complexity involved in conveying the information contained in the notice to a large and varied class. It also considered the need to find simpler and more accessible ways to communicate such complex messages. The court concluded that it should not refuse to issue the notice but would list the matter for a further case management hearing to discuss the form of the notice and related matters.

The court issued an order listing the matter for a further case management hearing, to be conducted by video-link, to allow for further submissions concerning the form of the notice and related matters. The solicitors for the parties were directed to contact the Associate to Justice Lee by 5pm on 3 April 2020 to propose agreed dates for the hearing. The entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011. The court thus sought to balance the need for equitable distribution of costs among group members with the complexities of communicating this information to a diverse class.