Cooper v ANZ Bank New Zealand Limited

[2013] NZHC 3116

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-3247 [2013] NZHC 3116

BETWEEN  SANDRA NORMA COOPER First Representative Plaintiff

ANDCRAIG RICHARD JONES Second Representative Plaintiff

ANDIVOR MARQUISE DE MENEFY Third Representative Plaintiff

AND  INK NZ LIMITED

Fourth Representative Plaintiff

ANDANZ BANK NEW ZEALAND LIMITED Defendant

Hearing:                   22 November 2013

Appearances:           B D Gray QC and S D Williams for Plaintiffs

A R Galbraith QC, R G Simpson and S V A East for Defendant

Judgment:                25 November 2013

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 25 November 2013 at 4.30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:           Bell Gully, Auckland

Counsel:            B D Gray QC, Auckland

S D Williams, Auckland

A R Galbraith QC, Auckland

COOPER v ANZ BANK NEW ZEALAND LTD [2013] NZHC 3116 [25 November 2013]

Introduction

[1]      This judgment is in respect of the Plaintiffs’ application dated 18 November

2013 (“application”) seeking orders:1

(a)       varying the order specified in [55] of the judgment of Peters J dated

25 October 2013 ([2013] NZHC 2827) to 1 March 2014;

(b)       approving an opt in notice to potential class members in the form attached to this application; and

(c)       directing that the respondent distribute the opt in notice by email to all potential class members (for whom it holds email addresses) on or before 1 December 2013.

Background

[2]      The application arises from an order that I made on 25 October 2013, fixing

13 December 2013 as the date on which the period for opting in to the proceeding would close.2

[3]      By their application, the Plaintiffs seek orders that the date of 13 December

2013 be varied, to 1 March 2014; that the Court approve the form of notice that the Plaintiffs propose to publish and/or circulate advising that the opt in period is to close and when; and that the Defendant (“ANZ”) email that notice to those of its customers (past and present) eligible to opt in to the proceeding.

[4]      ANZ opposes all of the orders sought.

[5]      I heard the parties on 22 November 2013.  At the conclusion of the hearing I advised counsel for the Plaintiffs that I declined to make the orders sought in (a) and (c) above, that I had yet to decide on (b) and that I would let the parties have my

reasons and/or decision, as the case may be, as soon as possible.

1   Interlocutory Application for  Order Varying Order  for  Class  Closure and  Related  Orders, 18

November 2013 at [1].

2 Cooper v ANZ Bank New Zealand Ltd [2013] NZHC 2827 at [55].

Date

[6]      In my judgment of 25 October 2013, I made an order allowing the Plaintiffs to bring this proceeding as a representative proceeding.3   In Saunders v Houghton,4 the Court of Appeal said that a judge making such an order should impose a final opt in or opt out date as part of case management procedures.5   I fixed a final opt in date accordingly.   The date I chose was some four or so weeks later than ANZ sought.    The  Plaintiffs  opposed  the  making  of  any  order  at  all  and  made  no submission as to the closing off date.

[7]      Mr Gray QC says, correctly, that the Plaintiffs had asked to be heard on the terms of any final opt in order.  I understood (possibly wrongly) that the Plaintiffs’ request related to the wording of the order, not the timing.  I reserved leave to apply as regards the wording of the order, but not otherwise.6

[8]      The essence of the Plaintiffs’ submission now is that a final opt in date of

13 December  2013  leaves  the  Plaintiffs  insufficient  time  to  communicate  with potential group members.

[9]      Counsel for ANZ submits that there is no jurisdiction to revisit the order that I made.  Any application for review was required to be filed and served within five working days of the date of the order, that is within five working days of 25 October

2013.7  As it was, the Plaintiffs did not indicate that they wished to revisit the date to

until they filed and served a memorandum to that effect dated 7 November 2013.

[10]     I accept ANZ’s submission that there is no basis on which I might now vary the order that I made, even if I were inclined to do so.  I decline the order sought in

[1](a) accordingly.

3 High Court Rules, r 4.24.

4 Saunders v Houghton [2013] 3 NZLR 652 (CA).
5 Ibid, at [75].
6 Cooper v ANZ Bank New Zealand Ltd, above n 2 at [56].

7 High Court Rules, r 7.49.

Approval of the draft opt in notice

[11]     The Plaintiffs propose to publish and/or circulate a notice to inform those eligible to opt in to the proceeding that the period in which they may do so is shortly to close. The Plaintiffs seek Court approval of the form of notice.

[12]     Counsel for ANZ submits that there is no jurisdictional basis for seeking the Court’s approval of such a notice, and that such communications are a matter for the party concerned, not the Court. Alternatively, if the Court were to review the notice, ANZ  submits  that  one  aspect  requires  amendment,  namely  the  deletion  of  a hyperlink in the notice to the “Fair Play on Fees” website.

[13]     The Plaintiffs’ provision of the notice to the Court follows the procedure adopted  in  the  Saunders  v  Houghton8   litigation.    In  that  proceeding,  French  J reviewed  the  notice  that  the  plaintiff  proposed  to  circulate  to  potential  class members, informing them of the closure of the opt in period.  French J did so in light of an earlier judgment of the Court of Appeal,9 in which the Court referred to criteria submitted to the Court on a related point.  The criteria included a requirement that any communication inviting people to opt in to the proceeding be submitted to the Court for approval prior to distribution. The Court of Appeal said:10

We make no judgment on these proposals...   But they identify questions which warrant recording for future consideration.

[14]     In her subsequent judgment, French J said that she had found the criteria helpful and, as I have said, considered (and amended) the form of notice submitted to her for consideration.11

[15]     Given the shortness of time, I have decided that the best course is to review and comment on the Plaintiffs’ notice.  Whether this is a course that the Court should

follow and, if so, in what circumstances, is a question for another day.

8 Saunders v Houghton HC Christchurch CIV-2008-408-348, 19 May 2010.

9 Saunders v Houghton [2010] 3 NZLR 331 (CA).
10 Ibid, at [32].

11 Saunders v Houghton, above n 8.

[16]     The notice is short and, on the whole, factual.  I record, however, that it is not for the Court to check the content of the notice for accuracy as to matters such as the funding arrangements between a participant and the litigation funder (the final paragraph on page one of the notice is an example of such a point).   It is for the Plaintiffs’ legal advisers to ensure that the notice contains a fair summary of the position insofar as it relates to that type of issue.

[17]     As   to   amendments,   I   require   the   Plaintiffs   to   delete   the   sentence commencing:

You are receiving this notice ...

and the words:

As a result, the Court has deemed it appropriate to notify you that ...

[18]     The Court is reviewing, not endorsing, the communication.

[19]     I also accept the submission of counsel for ANZ that the notice should not include a link to:

 It  is  common  ground  that  the  Fair  Play  on  Fees  website  advocates  the Plaintiffs’ claim.  In the hearing before me, counsel for the Plaintiffs advised that the Plaintiffs were willing and able to establish a website containing only the documents and information necessary for potential participants to make an informed decision as to whether or not they wished to opt in to the proceeding.  The notice should refer to that (to be established) website.  Alternatively, before distributing the opt in notice, the Plaintiffs could delete all advocacy from the Fair Play on Fees website, at least until 14 December 2013.

Direction sought as to the emailing of the notice

[21]     The Plaintiffs seek an order directing ANZ to distribute the opt in notice by email to potential class members (for whom ANZ holds email addresses), to be emailed on or before 1 December 2013.

[22]     ANZ opposes the order sought on three grounds.

[23]     First, ANZ submits that there is no jurisdiction to make such an order.  It also submits that, as a matter of principle, a defendant should not be required to assist a plaintiff to recruit group members to litigation against that defendant.

[24]     Secondly, ANZ submits that such an order is unnecessary in the present case as the Plaintiffs have proved themselves adept at generating publicity for their proceedings.  On the face of it, there is some substance to this submission.  There has been considerable newspaper publicity of the proceedings and more than 13,000 people  or  companies  have  registered  to  participate.     That  said,  there  is  no information available as to the size of the potential class.

[25]     Thirdly, ANZ submits such an order would impose a substantial burden on it. In support of this submission, ANZ has filed evidence as to the manner in which it undertakes communications with customers and the implications for ANZ of such a communication. The evidence may be summarised as follows.12

[26]     ANZ would identify the past and present customers with whom the Plaintiffs wish to communicate by writing a bespoke computer programme to generate the necessary information.  Having extracted the data, ANZ estimates that it would be at least four weeks before it could conduct any email communication.  A large mail out is usually planned many months in advance.    ANZ anticipates that the agency it employs to distribute such communications could not carry out the work at the present time.

[27]     ANZ’s experience has been that mass communications to customers generate questions from recipients, requiring additional call centre staff who themselves must be briefed to ensure that they can answer questions.  In the present case, a “rolling”

distribution to customers might be required to manage the subsequent call load.

12  Affidavit of Claire Jeanette Smollett sworn 18 November 2013; and Affidavit of Adriana van

Nispen sworn 18 November 2013.

[28]     Lastly, ANZ does not have email addresses for all its customers.   A letter dated 6 November 2013 from ANZ’s solicitors to counsel for the Plaintiffs is to the effect that ANZ may have email addresses for only 50 per cent of its customers.13

[29]     Leaving aside ANZ’s submission as to jurisdiction and the Plaintiffs’ apparent success in communicating with their target audience, I am satisfied that it would be unreasonable to make the order sought by the Plaintiffs.  On the evidence before me I am satisfied that the necessary work could not be completed prior to 1 December

2013, and possibly not prior to 13 December 2013.  I am also satisfied that the time and cost involved would place an unreasonable burden on ANZ.  I decline the order accordingly.

Costs

[30]     ANZ is entitled to costs, having (largely) succeeded in opposing the orders sought.

..................................................................

M Peters J

13 Affidavit of Claire Jeanette Smollett, above n 12, Exhibit “A”.