A SurfStitch In Time: Court Cannot Waive Opt-Out Rights In Australian Class Action

In Short:

The Situation:

The court's general power to make "any order [it] thinks appropriate or necessary to ensure that justice is done" in a class action has been employed to make a wide range of orders, including to remove the requirement for group members to be able to opt out of a class action, or be notified of their right to do so.

The Issue:

Two class actions against SurfStitch Group Limited settled after the company was placed into administration. The plaintiff in each class action sought court approval of the settlement and requested for the court to dispense with group members' right to opt out and receive notice of that right.

Looking Ahead:

Justice Stevenson determined that the general power over class actions could not be used to waive the requirement for group members to receive an opportunity to opt out, or be notified.