federal court of australia€¦ · 5. if, on or before the opt out date, the solicitors for any...

Prepared in the New South Wales District Registry, Federal Court of Australia

Level 17, Law Courts Building, Queens Square, Telephone 02 9230 8567

Federal Court of Australia

District Registry: New South Wales

Division: General No: NSD544/2019

JONES ASIRIFI-OTCHERE

Applicant

SWANN INSURANCE (AUST) PTY LTD (ACN 000 886 680) and another named in the

schedule

Respondents

ORDER

JUDGE: JUSTICE GLEESON

DATE OF ORDER: 23 September 2019

WHERE MADE: Sydney

THE COURT ORDERS THAT:

Opt-out

1. Pursuant to s 33J(1) of the Federal Court Act 1976 (Cth) (Act), 15 November 2019

(Opt Out Date) be fixed as the date by which group members may opt out of this

proceeding.

Notices in relation to Common Fund Order and Opt Out

2 . Pursuant to ss 33X(1)(a), 33X(5) and 33Y(2) of the Act, the form and content of the

notices set out in Annexures A to D be approved, namely:

(a) Annexure A, being the “Group Member Notice”;

(b) Annexure B, being the “Funded Group Member Cover Letter”;

(c) Annexure C, being the “Unfunded Group Member Cover Letter”; and

(d) Annexure D, being the “Advertisement”.

3. Pursuant to ss 33X(1)(a), 33X(5) and 33Y(3) of the Act, the notices are to be given to

group members on or before 11 October 2019 (Notice Date) according to the following

procedure:

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(a) in the case of group members who have entered into litigation funding

agreements with Balance REV Ltd (Funded Group Members), which at the date

of this order comprises the applicant only, the solicitors for the applicant will

cause to be sent to Funded Group Members the Funded Group Member Cover

Letter and the Group Member Notice at the email address previously provided

by them;

(b) in the case of group members who have not entered into litigation funding

agreements with Balance REV Ltd (Unfunded Group Members), the solicitors

for the applicant will cause to be sent to Unfunded Group Members the

Unfunded Group Member Cover Letter and the Group Member Notice according

to the following procedure:

(i) upon the solicitors for the applicant being provided the List of Purchasers

pursuant to Order 1 of the orders dated 28 June 2019 (List of

Purchasers) and the Further List of Purchasers as referred to in order 1

of the orders dated 19 August 2019, the solicitors for the applicant will

compile a list of persons who appear to be group members and who are

not Funded Group Members by de-duplicating and removing from the

lists those persons who are Funded Group Members (Unfunded Group

Member List); and

(ii) the solicitors for the applicant will cause the Unfunded Group Member

Cover Letter and the Group Member Notice to be sent to each person on

the Unfunded Group Member List at that person’s email address, to the

extent that an email address associated with that person is specified on

the Unfunded Group Member List;

(c) the solicitors for the applicant will cause the Group Member Notice to be posted

on a publicly available website managed by or on behalf of the solicitors for the

applicant;

(d) the solicitors for the applicant will cause the Advertisement to be published once

in each of the following newspapers by the Notice Date:

(i) the Courier-Mail;

(ii) the Sydney Morning Herald;

(iii) the Canberra Times;

(iv) the Age;

(v) the Mercury;

(vi) the Adelaide Advertiser;

(vii) the West Australian; and

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(viii) the Northern Territory News, and

(e) the District Registrar of the New South Wales District Registry of the Federal

Court of Australia shall cause the Group Member Notice to be posted on the

Federal Court of Australia website, and made available for inspection at the

District Registry of the Federal Court of Australia in Melbourne, Sydney,

Canberra, Brisbane, Adelaide, Perth, Hobart and Darwin.

4. The costs of, and incidental to, the procedure set out in order 3 above are to be paid by

the applicant, and such costs will be costs in the cause. For the avoidance of doubt:

(a) addressing inquiries by group members and members of the public in relation to

the Group Member Notice or the Advertisement is work that is incidental to

order 3 above; and

(b) any communications with such group members will not contravene order 2 of the

orders dated 28 June 2019.

5. If, on or before the Opt Out Date, the solicitors for any party receives a notice purporting

to be an opt out notice referable to this proceeding, the solicitors shall file that notice

with the Federal Court of Australia, NSW District Registry, within three days of receipt

of the notice by the solicitors and the notice shall be treated as an opt out notice received

by the Court at the time it was received by the solicitors.

6. The parties have leave to inspect the Court file and copy any opt out notices filed.

Date that entry is stamped: 23 September 2019

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Schedule

No: NSD544/2019

Federal Court of Australia

District Registry: New South Wales

Division: General

Second Respondent INSURANCE AUSTRALIA LIMITED (ACN 000 016 722)

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