Nelson v Beach Energy Ltd - [2025] VSC 339

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

GROUP PROCEEDINGS LIST

S ECI 2021 04440

EDWARD JOHN NELSON
GAIL CHRISTINE NELSON	Plaintiffs
v
BEACH ENERGY LTD (ACN 007 617 969)	Defendant

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JUDGE:	Nichols J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers; submissions and evidence filed 22 May 2025, 23 May 2025, 3 June 2025 and 11 June 2025, hearing on 12 June 2025
DATE OF RULING:	13 June 2025 (Revised 17 June 2025)
CASE MAY BE CITED AS:	Nelson v Beach Energy Ltd
MEDIUM NEUTRAL CITATION:	[2025] VSC 339

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PRACTICE AND PROCEDURE — Group Proceedings — Opt out — “Soft” class closure orders — Whether appropriate or necessary to ensure that justice is done — Where notice regime appropriate to ensure that justice is done — Supreme Court Act 1986 (Vic) ss 33ZF, 33ZG — Lendlease Corporation Ltd v Pallas [2025] HCA 19.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Ms K Burke SC Mr D Fahey Ms K Butler	Slater & Gordon
For the Defendant	Ms J Findlay	Herbert Smith Freehills

HER HONOUR:

Introduction and background

This is a group proceeding (a class action) issued under Part 4A of the Supreme Court Act1986 (Vic) (the Act). The parties jointly seek orders under ss 33J, 33X and 33Y of the Act fixing the date by which group members may opt out of the proceedings and for notice to be given accordingly. They also seek orders under ss 33ZF and 33ZG of the Act, for what has become known as “soft class closure”. That expression does not appear in the Act but is employed for convenience. Under the proposed orders, if the proceedings do not settle before trial, the claims of unregistered group members will still be determined in the proceedings. All group members (save for those who opt out) will be bound by the result of the proceeding and entitled to seek to benefit from any judgment given in favour of the plaintiffs. Those who do not register will not be permitted to participate in any settlement unless granted leave to do so. This ruling addresses the application for class closure orders.

The proposed orders relevantly provide that:

(a)any group member who wishes to seek any benefit pursuant to any in-principle settlement reached at the mediation of the proceeding presently scheduled for early 2026, must be a registered group member (as defined);
(b)any group member who does not opt out and who has not become registered by the Class Deadline shall not, without leave of the Court, be permitted to seek any benefit pursuant to any settlement reached on or before 21 September 2026 (being two weeks before trial is to commence), but shall remain a group member for the purposes of the proceeding.

This Court has express power under ss 33ZF and 33ZG of the Act to make orders of the kind sought. Section 33ZG provides:

33ZG Order may specify a date by which group members must…

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: [2025] VSC 339
Decision Date: 13 June 2025 (Revised 17 June 2025)

CaseChat Overview and Summary

Nelson and other members of a class brought proceedings against Beach Energy Limited for damages arising from alleged breaches of statutory duty and misleading or deceptive conduct. The dispute came before the Court, which had to determine whether the making of "soft" class closure orders was appropriate or necessary to ensure that justice was done. The legal issues centred on the interpretation and application of the relevant provisions of the Supreme Court Act 1986 (Vic) and the principles established in Lendlease Corporation Ltd v Pallas. The Court had to consider whether the notice regime was suitable to ensure that justice was done for all parties involved in the proceedings.

The Court examined the provisions of the Supreme Court Act 1986 (Vic) and the principles from Lendlease Corporation Ltd v Pallas. It held that the "soft" class closure orders were appropriate and necessary to ensure that justice was done. The Court found that the notice regime was appropriate to inform affected parties of the proceedings and their rights, as well as the implications of the proposed orders. The Court concluded that the making of "soft" class closure orders was in line with the objectives of the group proceeding legislation and the principles established in Lendlease Corporation Ltd v Pallas.

The Court made "soft" class closure orders, allowing the proceedings to continue while ensuring that justice was done for all parties involved. The Court found that the notice regime was sufficient to inform affected parties of the proceedings and their rights, as well as the implications of the proposed orders. The Court held that the making of "soft" class closure orders was appropriate and necessary to achieve the objectives of the group proceeding legislation and to ensure that justice was done.

The Court made "soft" class closure orders, allowing the proceedings to continue while ensuring that justice was done for all parties involved. The Court found that the notice regime was sufficient to inform affected parties of the proceedings and their rights, as well as the implications of the proposed orders. The Court held that the making of "soft" class closure orders was appropriate and necessary to achieve the objectives of the group proceeding legislation and to ensure that justice was done.

Orders