Parkin v Boral Limited (Opt Out Notices)

The matter before the court involved three parties who had initiated open class actions concerning a single issue: the form of opt out notices to be sent to group members. The actions were two funded class actions and one following the no win/no fee model. The funded class actions had differing outcomes, with one permanently stayed and the other allowed to proceed as a closed class. The court was tasked with deciding whether the opt out notices should be sent simultaneously to all group members or if a staggered approach should be adopted. Additionally, the court had to consider the power to issue an opt out notice to a subset of group members and the implications of this power in light of the text, context, and purpose of Pt IVA of the Federal Court of Australia Act 1976 (Cth).

The court found that it was clearly within its power to issue opt out notices to different group members at different times. However, the court noted that the issue of whether "soft class closure" orders were within its power required further consideration and detailed argument if the matter was pressed in the future. The court examined the relevant provisions of Pt IVA of the Federal Court of Australia Act 1976 (Cth) and concluded that the power to issue opt out notices to different group members at different times was a permissible exercise of the court's discretion.

Based on the court's reasoning, the parties were instructed to provide a short minute of order and a form of opt out notice that reflected the court's decision and the oral exchange on 27 April 2021. Entry of orders was to be dealt with in accordance with Rule 39.32 of the Federal Court Rules 2011. The court's decision provided clarity on the issue of staggered opt out notices and the court's power to issue such notices to different group members at different times, but left the question of "soft class closure" orders for potential future consideration.