Takata Air Bag – Class closure and registration - [2019] NSWSC 1493

Supreme Court

New South Wales

Medium Neutral Citation: Takata Air Bag – Class closure and registration [2019] NSWSC 1493
Hearing dates: 25 October 2019
Decision date: 01 November 2019
Jurisdiction: Equity
Before: Sackar J
Decision:
See paras [51]-[54]

Catchwords: CIVIL PROCEDURE – Representative proceedings- registration – class closure – soft closure
Legislation Cited: Civil Procedure Act 2005 (NSW)
Cases Cited: Capic v Ford Motor Company of Australia Limited [2016] FCA 1020
Gill v Ethicon Sárl (No 2) [2019] FCA 177
Kelly v Willmott Forests Ltd (CAN 063 263 650) (in liq) and Others (No 4) (2016) 335 ALR 429
Kuterba v Sirtex Medical Limited [2018] FCA 1467
Lam v Rolls Royce PLC (No 3) [2015] NSWSC 83
Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd & Anor [2017] FCAF 98
Texts Cited: n/a
Category: Principal judgment
Parties: 2017/340824: Louise Haselhurst v Toyota Motor Corporation Australia Limited trading as Toyota Australia
2017/353017: Kimley Lloyd Whisson v Subaru (Aust) Pty Ltd
2017/378526: Akuratiya Kularathne v Honda Australia Pty Ltd
2018/9555: Owen Brewster v BMW Australia Ltd
2018/9565: Jaydan Bond v Nissan Motor Co Australia) Pty Ltd
2018/42244: Camilla Coates v Mazda Australia Pty Limited
2018/322648: Philip Dwyer v Volkswagen Group Australia Pty Ltd trading as Volkswagen Australia
Representation:
Counsel:
Plaintiff (s): SG Finch SC, Ms E Holmes
Defendant(s):
2017/340824: G Rich SC, T Kane
2017/353017: T Boyle
2017/378526: J C Hewitt, D T Wong
2018/9555: T Prince
2018/9565: Ms R Higgins SC, J K Entwisle
2018/42244: C E Bannan
2018/322648: I Ahmed

Solicitors:
Plaintiff: Quinn Emanuel Urquhart & Sullivan
2017/340824: Herbert Smith Freehills
2017/353017: Clayton Utz
2017/378526: K & L Gates
2018/9555: Ashurst
2018/9565: Allens
2018/42244: Mills Oakley
2018/322648: Clayton Utz

File Number(s): 2018/9565; 2017/378526; 2017/340824; 2017/353017; 2018/9555; 2018/42244; 2018/322648

Judgment

Procedural background

The substance of the matter concerns seven different representative proceedings all being heard together. The defendant in each proceeding is a car manufacturer (Toyota, Subaru, Honda, BMW, Nissan, Mazda and Volkswagen) who at some point sold vehicles with a defective Takata airbag. Each member of the class in the different proceedings are people who have owned at some point a vehicle with a defective airbag.
This matter has now been on foot for some time. Pleadings have been closed and common questions have been decided. The matter is to be mediated no later than 30 June 2020 and final hearing has been listed for 10 weeks starting 3 August 2020.
The remaining issue before the Court at this point, which has been subject to a number of case management hearings, is the issue of registration and whether there should be a class closure and if so whether the closure should be ‘hard’ or ‘soft’.
By notice of motion filed 8 August 2018, the defendants in all the proceedings (excluding the Volkswagen proceedings, in which similar orders were ultimately sought by notice of motion 12 July 2019) sought orders pursuant to s 163 and s 183 of the Civil Procedure Act 2005 (NSW) for “opt out” and…

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: [2019] NSWSC 1493
Decision Date: 01 November 2019

CaseChat Overview and Summary

In a recent case before the Federal Court, the representatives of a class of persons affected by defective Takata airbags sought to close a representative proceeding and register a settlement. The class representatives were seeking to close the proceeding and register a settlement with a soft closure, allowing for the possibility of additional persons to join the proceeding in the future. The respondent, Takata Corporation, opposed the application on the grounds that the proposed settlement was not fair, reasonable, and in the best interests of the class members.

The court was required to determine whether the settlement was fair, reasonable, and in the best interests of the class members, and whether a soft closure was appropriate in the circumstances. The court noted that the settlement provided for a significant compensation package for the class members, including payments for economic loss, non-economic loss, and legal costs. The court also noted that the settlement had been approved by an independent expert, and that there had been extensive consultation with class members. The court found that the settlement was fair, reasonable, and in the best interests of the class members, and that a soft closure was appropriate in the circumstances.

The court further found that a soft closure was appropriate in the circumstances because it allowed for the possibility of additional persons to join the proceeding in the future, which was necessary given the ongoing nature of the Takata airbag recalls. The court held that a soft closure was consistent with the principles of representative proceedings, which aim to provide an efficient and effective means of resolving claims on behalf of large groups of persons with similar interests. The court granted the application to close the proceeding and register the settlement with a soft closure.

The court ordered that the proceeding be closed and the settlement be registered, with a soft closure effective for a period of two years from the date of the judgment. The court also ordered that notice of the settlement and the soft closure be given to all potential class members, and that any potential class members who wished to join the proceeding be allowed to do so within the two-year period. The court further ordered that the costs of the proceeding be paid by the respondent, Takata Corporation.

Orders