Webb v GetSwift Limited

Webb v GetSwift Limited was heard by the Federal Court and concerned an application for interim orders under section 33ZF of the Federal Court of Australia Act 1976 (Cth). The applicant sought orders to restrain the lead applicant and the litigation funder in a permanently stayed representative proceeding from contacting group members in this proceeding solely in relation to opt out pending determination of contested issues relating to an opt out process. The court was required to decide whether an order was appropriate and necessary to ensure that justice was done in this proceeding.

The court noted that the litigation funding agreement in the Perera Proceeding provided ILP18’s address for service as the business address of SPB. Through Mr Edwards, the court enquired of SPB whether it would accept service on behalf of ILP18. Although not in a position to accept service, SPB indicated that they would do what they could to draw the material served to the attention of ILP18. The court was comfortably satisfied in all the circumstances that a communication made to SPB would come to the attention of ILP18 and as quickly as any other mode of service.

For the foregoing reasons, the court concluded that orders would be made preventing Mr Perera and ILP18 from communicating with group members in this proceeding solely in relation to the issue of whether group members should exercise their right to opt out of this proceeding pursuant to s 33J of the Act until 4.15 pm on 8 June 2018, with liberty reserved to ILP18 to apply to seek to have the restraint discharged or varied. The orders also allowed for the avoidance of doubt that the restrained parties could respond to unsolicited enquiries concerning opt out made by group members. The court also ordered that the applicant file and serve a copy of these orders, an amended interlocutory application identifying the prayers for relief it would seek to continue after 4.15 pm on 8 June 2018 and the affidavit material read on the interlocutory application on 28 May 2018, with such material to be served on ILP18 by sending it by email to Squire Patton Boggs to the attention of Ms Amanda Banton and Ms Lisa Gallate at [email protected] and [email protected]. Liberty was also reserved to ILP18 to approach the Associate to Justice Lee to make any application it wished to make to discharge or vary Order 3 above, which was made on an ex parte basis. The costs of the interlocutory hearing on 28 May 2018 were reserved.