IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Commercial Court
GROUP PROCEEDINGS List
S ECI 2020 02946
Alannah Fox
(and another according to the attached schedule)	Plaintiffs	
		
v  		
		
Westpac Banking Corporation (ACN 007 457 141)
(and another according to the attached schedule)	Defendants	

S ECI 2020 03365
Daniel O’Brien	Plaintiff	
		
v  		
		
Australia and New Zealand Banking Group Limited (ACN 005 357 522) 
(and another according to the attached schedule)	Defendants	

S ECI 2020 03924
Daimin Nathan
(and another according to the attached schedule)	Plaintiffs	
		
v  		
		
Macquarie Leasing Pty Ltd (ACN 002 674 982)	Defendant	

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JUDGE:	NICHOLS J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	2 June 2023; 9 June 2023; 6 July 2023	
DATE OF RULING:	20 July 2023	
CASE MAY BE CITED AS:	Fox v Westpac; O’Brien v ANZ; Nathan v Macquarie	
MEDIUM NEUTRAL CITATION:	[2023] VSC 414 	

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PRACTICE AND PROCEDURE — Group Proceedings — “Soft” class closure orders — Judicial mediation ordered — Whether group members must register to be entitled to distribution of any settlement reached at mediation — Whether appropriate or necessary to ensure that justice is done — Class closure likely to assist parties to resolve proceedings — Balance interests of the group members — Kamasaee v Commonwealth of Australia, distinguished — Supreme Court Act 1986 (Vic) ss 33ZF, 33ZG.

PRACTICE AND PROCEDURE — Group Proceedings — Production of group member data held by defendants to assist opt out and registration process — Data security — APRA Prudential Standard CPS 234.

PRACTICE AND PROCEDURE — Group Proceedings — Opt out — Personal notice — Whether personal notice is reasonably practicable and not unduly expensive — Multiple media for personal communications to be employed — Notice distributed by email at first instance — Notice published in newspapers — Supreme Court Act 1986 (Vic) s 33Y(4).

COSTS — Costs of Notice — Whether general rule in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd applies — Where defendants sought class closure — Unfettered discretion — Costs borne equally — Supreme Court Act 1986 (Vic) s 33Y(2)(d).

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiffs in each proceeding	Mr D Fahey
Ms S Hogan	Maurice Blackburn	
			
For the Defendants in 
S ECI 2020 02946	Mr D Thomas SC
Ms C Hamilton-Jewell	King & Wood Mallesons	
			
For the Defendants in 
S ECI 2020 03365	Mr M Rush KC
Ms E Dias	Herbert Smith Freehills	
			
For the Defendants in 
S ECI 2020 03924	Mr J Williams SC
Mr J Entwisle	Gilbert + Tobin	

HER HONOUR:
Part A: Introduction and Background
1	Each of these proceedings is a group proceeding (a class action) issued under Part 4A of the Supreme Court Act 1986 (Vic) (the Act).  The parties seek orders under ss 33J, 33X and 33Y of the Act for the fixing of a date by which group members may opt out of the proceedings and for notice to be given accordingly.  They are in each case substantially agreed on those orders, save in respect of the media via which notification should occur. 
2	The defendants seek orders in each case under ss 33ZF and 33ZG of the Act, by which group members will be required to register their interests in the proceedings in order to seek any benefit under any in-principle settlement that is reached at or in consequence of mediations which are to be held later this year (order to “close the class”).  They contend that registration will facilitate an understanding of the quantum of the potential claims.  Without registration, the mediations to be held later this year will occur without any real parameters for estimating the magnitude of the claims. That is undesirable where, as in these cases, potential group members number in the hundreds of thousands.  The plaintiffs oppose the making of such orders and contend instead that the Court should provide for voluntary registration by group members without any consequence attending the failure to register.  That step, the plaintiffs submit, will be sufficient to allow the defendants to assess quantum for the purposes of the mediations.  They say that group members should not be required to register until a settlement is “on the table”.
3	A related question is whether the defendants should provide to the plaintiffs’ representatives, data held by them concerning group members, that the plaintiffs contend would assist group members deciding whether to opt out or register an interest in the proceedings and if so, how such data should be provided. 
4	The proceedings are being case managed together, and the present applications were heard together.  The plaintiffs are each represented by Maurice Blackburn.  For the purposes of these reasons I will differentiate between the proceedings where necessary.
5	Each proceeding concerns “flex commission” arrangements in retail lending to consumers purchasing motor vehicles. 
6	In each case the plaintiffs allege that, under the so-called “flex commission” arrangements, car dealers were authorised by the relevant financiers to set their own interest rates for loans that the banks provided to consumers, introduced to them by the dealers, by setting the rates charged to consumers higher than the base rate set by the banks.  Where a higher interest rate was set, the dealer was paid a commission calculated as a proportion of the difference.  The plaintiffs say that these arrangements, which were not disclosed or required to be disclosed to customers, incentivised the dealers to set higher interest rates than they would otherwise have set.  The dealers are alleged to have been acting on behalf of the lenders, and engaging in conduct that was, among things, unfair within the meaning of s 180A(1)(b) of the National Consumer Credit Protection Act 2009 (Cth).  The claims are disputed.  Although the claims and defences, concerning different entities, are necessarily not identical, the issues raised in the proceedings are substantially similar.
7	Alannah Fox and Bridget Nastasi bring claims against Westpac Banking Corporation and its subsidiary St George Finance Ltd.  That proceeding was commenced in July 2020 and concerns transactions by which group members entered into finance agreements for the acquisition of motor vehicles during the period March 2013 to 31 October 2018.  Westpac has identified approximately 403,000 loans to group members during the relevant period (noting that there may be some group members who entered into more than one loan).  Pleadings were closed in December 2020. Discovery is complete.  The parties have filed their lay evidence.  The parties have, pursuant to court orders, exchanged lists identifying the expert witnesses who they intend to call to trial and the substance of the matters to be addressed by those witnesses.  Expert evidence is due to be filed by 18 August 2023.  
8	Daniel O’Brien brings claims against Australia and New Zealand Banking Group Limited (ANZ), for loans taken with the Esanda car finance business (a subsidiary of ANZ), and against Macquarie Bank Limited.  That proceeding was commenced in August 2020 and concerns transactions by which group members entered into finance agreements for the acquisition of motor vehicles during the period 1 January 2011 to 31 March 2016.  ANZ estimates that approximately 373,000 persons (representing approximately 323,000 contracts) fall within the group definition.  Pleadings were closed in February 2021.  Discovery is complete.  The parties’ lay evidence has been filed.  The parties have, pursuant to court orders, exchanged lists identifying the expert witnesses who they intend to call to trial and the substance of the matters to be addressed by those witnesses.  Expert evidence is due to be filed  by 11 August 2023. 
9	Tania and Daimin Nathan bring claims against Macquarie Leasing Pty Ltd.  That proceeding was commenced in October 2020 and concerns transactions by which group members entered into finance agreements for the acquisition of motor vehicles during the period 1 March 2013 to 31 October 2018.  Macquarie has identified approximately 193,900 potential group members in the proceeding against it.  Pleadings closed in April 2022.  Discovery is complete.  The parties have filed their lay evidence.  The parties have, pursuant to court orders, exchanged lists identifying the expert witnesses who they intend to call to trial and the substance of the matters to be addressed by those witnesses.  Expert evidence is due to be filed by 25 August 2023. 
10	In each of the present applications, the plaintiffs relied on evidence of Andrew  Watson, solicitor and head of Maurice Blackburn’s Class Actions division.  Westpac relied on evidence of its solicitor, Moira Saville of King & Wood Mallesons.  ANZ relied on evidence of its solicitor, Ruth Overington of Herbert Smith Freehills. Macquarie relied on evidence of its solicitor, Philippa Hofbrucker of Gilbert + Tobin.
Part B: Class Closure
11	In each case, the defendants sought orders to the following effect:
(a)	The plaintiffs’ solicitors make available an online registration process by which group members register their interest in the relevant proceeding, by providing their personal contact details and some information about their arrangements with the relevant bank, including the registration number of the vehicle for which the group member obtained finance.
(b)	Any group member who has completed the registration process or who has provided equivalent information to the plaintiffs’ solicitors by the date fixed by the Court, is taken to be a registered group member.  
(c)	Any group member who wishes to seek any benefit pursuant to any in‑principle settlement reached at the mediation of the proceedings presently fixed for later this year, must be a registered group member.  Subject to any further order, any group member who does not opt out and who has not become registered in accordance with the proposed orders shall not, without leave of the Court, be permitted to seek any benefit pursuant to any such settlement; but shall remain a group member for all purposes of the relevant proceeding.
12	The defendants are seeking what has become known in this area of discourse as “soft class closure”.  That expression does not appear in the Act, but is employed for convenience. It is commonly used to distinguish orders of the kind presently sought, from orders that would remove unregistered group members from the represented class (by amending the relevant group definition) or by which unregistered group members would not be permitted to benefit from any judgment in favour of the plaintiff, or any subsequent settlement.  Under the proposed orders, if the proceedings do not settle at the mediations to be held later this year, the claims of unregistered group members will still be determined in the proceedings and those group members would be bound by the result, and entitled to seek to benefit from any judgment delivered for the plaintiffs.  As Murphy and Lee JJ said in Parkin v Boral, orders of the kind presently sought, do not transmogrify an open class into a closed one, but demarcate between registered and unregistered group members, which demarcation only has an effect if a settlement is later reached and approved by the Court.
13	The plaintiffs contended that group members should, by the Court-approved notice, be invited and encouraged to register their claims, but without the imposition of a consequence for failing to register.
Governing Principles 
14	The governing principles were not disputed. 
15	This Court has express power to require group members to take a positive step in order to be entitled to obtain any relief or benefit arising out of a proceeding issued under Part 4A of the Act.  Section 33ZG provides as follows:
Without limiting the operation of section 33ZF, an order made under that section may— 
(a)	set out a step that group members or a specified class of group members must take to be entitled to— 
(i)	any relief under section 33Z; or 
(ii)	any payment out of a fund constituted under section 33ZA; or 
(iii)	obtain any other benefit arising out of the proceeding— irrespective of whether the Court has made a decision on liability or there has been an admission by the defendant on liability; 
(b)	specify a date after which, if the step referred to in paragraph (a) has not been taken by a group member to whom the order applies, the group member is not entitled to any relief or payment or to obtain any other benefit referred to in that paragraph.
16	Section 33ZG elaborates upon the power conferred by s 33ZF, by which the Court may make any order the Court thinks appropriate or necessary to ensure that justice is done in the proceeding.  No provision equivalent to s 33ZG is found in Part IVA of the Federal Court of Australia Act 1976 (Cth) or in the cognate provisions of other states.  
17	The dispute in this case then, is not about whether the Court has power to make orders of the kind sought, but whether there is a proper basis for the exercise of the power, in the circumstances.  The parties rightly accepted that the question whether orders of this kind should be made, calls for a judgment concerning the circumstances of the case, and that the significance of decisions in other cases has to be understood accordingly.  The question whether an open-class proceeding should be closed requires a fact-specific answer and one cannot reason from a result in one case to the result that should follow in any other case.  I will refer to the authorities variously emphasised by the parties. 
18	In Matthews v SPI Electricity Pty Ltd the Court granted an application by consent to close what had been an open class group proceeding, by permitting amendments to the group definition so as to exclude the claims of those group members who did not register their claims by a Court-ordered deadline.  There, J Forrest J set out a comprehensive consideration of the Court’s powers under ss 33ZG and 33ZF in respect of “class closure” and the principles said to inform an exercise of the power to require group members to take a step in the proceeding to be entitled to claim any benefit in relation to it.  His Honour’s articulation of the principles was not limited to those relevant to cases in which an amendment to the group definition is sought and was developed by reference to historical decisions about class closure.  That judgment has been subsequently relied upon in this Court, the Federal Court and the New South Wales Supreme Court.  I respectfully adopt his Honour’s analysis, relevant parts of which I now summarise:
(a)	The terms of s 33ZF make clear that it was the legislature’s intention that the Court have a wide power to maintain close supervision over novel problems that may arise under Part 4A proceedings.  
(b)	It is of particular note that s 33ZG specifically enables a court to impose such a requirement prior to judgment or settlement of the liability issue.  
(c)	It is also relevant to an application of this kind, that s 49 of the Civil Procedure Act 2010 (Vic) empowers a court to give any direction or make any order it considers appropriate to further the overarching purpose in relation to the conduct of a hearing of a civil proceeding. 
(d)	It is within the Court's power to order class closure in the sense that a member of the class must take a positive step such as identifying himself or herself after receiving notice of class closure.  It is also within the Court's power to terminate the entitlement to compensation of any group member who does not come forward and indicate a willingness to participate in a distribution (putative or actual) pursuant to either a settlement or judgment. 
(e)	One of the fundamental bases for the class action provisions is achieving finality not only for the group members but also for the defendants to the proceeding.
(f)	It may be appropriate, to make orders for class closure prior to a settlement or judgment.  Such a course may be warranted notwithstanding that there is no prospective settlement, but on the material available it is in the interests of the class as a whole, to require such a step to be taken.  Relevant considerations include the point at which the case has reached, the attitude of the parties to such a step, and the complexity and likely duration of the case.
(g)	If, during a proceeding an order is to be made converting the nature of the class from open to closed, it should only be made where the group members have adequate notice of the proposed change and a reasonable amount of time in which to determine whether to join the closed class.
(h)	The point in time at which a class closure order is made, is important.  Ultimately, it is a question of balance and judicial intuition, requiring a determination as to when it is appropriate and in the interests of group members as a whole to require a step to be taken which may promote a prospective settlement as against “simply letting the case proceed, perhaps interminably, without requiring group members to lift a finger – even if that course leads to disaster”.
19	In granting the orders sought on the facts in that case, the Court said that it was relevant that:
(a)	No sensible estimate could be made of the size of the claim until the number of claims was ascertained.
(b)	The Civil Procedure Act encourages parties to reach resolution and for the Court to give effect to that aim.  
(c)	A process that could facilitate sensible resolution should be encouraged, given the complexity of the claims and prospect of protracted litigation.  It was in the interests of group members to have the opportunity to participate in a settlement as opposed to facing the risks of the proceeding progressing to trial.
(d)	The proceeding was reasonably progressed at the time at which the orders were sought.  Discovery was complete, and evidence had been collated.
(e)	It was inevitable that at some point it would be necessary to close the class. Requiring registration “accelerates what will be an inevitable process”.
(f)	The registration process was simple and not oppressive for group members and considerably enhanced the parties’ ability to participate in settlement negotiations.
(g)	By registering, group members were not required to fund the claim or commit to the plaintiffs’ solicitors.
20	I accept that, as the plaintiffs emphasised, in Matthews, class closure orders were sought by consent.  However, in the reasoning in that case, the relevance of the other identified considerations does not rest upon the presence of consent between the parties.  While the parties are in dispute in the present case, the approach taken to the exercise of discretion in Matthews is nevertheless of real assistance in considering this case.
21	The plaintiffs drew attention to Kamasaee v the Commonwealth of Australia, a proceeding on behalf of former Manus Island detainees, in which McDonald J, applying Matthews, refused an application by the defendants (which was opposed by the plaintiff) for orders of the same kind sought in this case.  The class in that case comprised 1,905 individuals who were dispersed and resident in many countries at the time the orders were sought.  The defendants had what they described as effective means of contacting 1,370 group members but the position was in doubt in respect of the remainder.  His Honour found that, particularly in respect of group members who had returned to their country of origin (a cohort comprising more than 25 percent of the class), there was a very real risk that a recipient of an opt out notice would not comprehend its meaning or would not be able to access appropriate legal advice in respect of the notice.  His Honour accepted that some group members who remained at the Manus Island processing centre or in detention in Australia may harbour apprehensions that in the event they were to take a positive step of opting in to the proceeding, their prospect of participating in a resettlement arrangement may be jeopardised.  An expert report that was in evidence on the application concluded that the prevalence and severity of metal disorders amongst the asylum seeker and refugee population on Manus Island was extreme.  It was not in dispute that group members comprised individuals with different language abilities, literary skills and education.  The application was strongly opposed by the plaintiff.  In those circumstances, McDonald J found that there was a real risk that individuals who would otherwise wish to remain in the class, would be unintentionally excluded, and concluded that group members should not at that time be required to take a positive step of opting into the proceeding.
22	All parties referred to Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd.  There, the Full Court of the Federal Court set out its views in relation to the making of class closure orders generally, in light of what they described as a divergence in judicial practice.  By reference to the High Court’s decision in Mobil Oil Australia Pty Ltd v Victoria, the Full Court emphasised that it was the intention of Parliament to adopt an opt out rather than an opt in procedure and that group members need take no positive step in class proceedings.  Their Honours said that there must be “good reason” for the Court to exercise its discretion to make a class closure order which would operate to deny benefits to group members who take no positive step to participate in the proceeding. 
23	The Full Court went on to say that if a class closure order operates to facilitate the desirable end of settlement, it may be reasonably adapted for the purpose of obtaining justice in the proceeding and therefore appropriate under s 33ZF.  Such an order would allow parties to have a better understanding of the total quantum of the claim, permitting a settlement amount to be capped by reference to the number of registered group members.  Their Honours said that the Court must exercise caution with respect to timing, considering at what stage in the proceeding it would be appropriate to close the class and that the Court’s discretion should not be exercised merely on the basis of the defendant’s assertion that it is unwilling to enter settlement discussions without the certainty of a closed class.  The Court adopted the language of J Forrest J in Matthews, accepting that class closure orders are a question of “balance and judicial intuition”, in which the Court should take into account the interests of the class as a whole, the surrounding circumstances including the stage of the proceeding, the attitudes of parties, and the complexity and likely duration of the case.  As the Full Court put it, that would often involve striking a balance between conflicting interests of class members.  The Full Court upheld the primary judge’s exercise of discretion to order the closing of the class at that stage in the proceeding.  The primary judge had determined it appropriate in the circumstances, where the trial was imminent, the parties had agreed to mediate within three months, the proceeding was at a stage where the parties were in a position to realistically assess the prospects of victory or defeat, and both parties considered that a class closure order would better facilitate settlement at mediation.
24	The emphasis given by the Full Court in Treasury Wine to Parliament’s intention that group members not be required to take a positive step in the proceeding, must be read in light of the fact that unlike Part 4A of the Act (the Victorian regime), Part IVA of the Federal Court Act does not contain the express provision in found in s 33ZG. It will be recalled that an order made under s 33ZG may set out a step that group members must take in order to be entitled to obtain any benefit arising out of the proceeding (and specify a date after which the group members who has not taken that step will not be so entitled), and may do so irrespective of whether the Court has made a decision on liability or there has been an admission as to liability.  
25	Furthermore, as the Victorian Court of Appeal said in Regent Holdings Pty Ltd v State of Victoria, Mobil Oil does not stand for the proposition that it is of the essence of a Part 4A proceeding that group members not be required to take any positive step before questions of liability are resolved.
26	In Parkin v Boral, Murphy and Lee JJ remarked upon the significance of s 33ZG to the Victorian regime.  Their Honours traced the history of the divergence of views between the Federal Court and the New South Wales Supreme Court, in which the latter Court has determined that s 33ZF alone, does not authorise the making of a soft class closure order.  Part 10 of the Civil Procedure Act 2005 (NSW) does not contain a cognate of s 33ZG.
27	The plaintiffs referred to the decision of Murphy J in Kuterba v Sirtex in which his Honour declined to make orders closing the class, emphasising that it is possible to structure a settlement from an “imperfect understanding of aggregate claim value”.
28	I accept that many class actions have settled without class closure orders.  I also accept that the views of the plaintiffs’ representatives, that are addressed to the interests of group members, must be accorded appropriate weight in evaluating the competing factors that must be taken into account in deciding whether to exercise the discretionary power to make an order under ss 33ZF and 33ZG.  However, the position of the practitioners representing either party cannot be determinative in the sense of arrogating to the parties a decision that must remain one for the Court. 
29	It is not uncommon for parties in group proceedings to seek class closure orders by consent, on the basis that doing so will facilitate settlement.
30	In this case, the views of the practitioners for the parties are not aligned. In such a case, the views of parties on both sides of the ledger may be relevant to inform the exercise of the discretion. That is so because when it comes to settlement, which is the objective to which class closure orders are directed, the interests of both sides are engaged.  As courts have emphasised, mere assertion by a defendant that a matter will not likely settle without class closure is uninstructive.  Neither, I would add, is a mere assertion by any party about the fate of negotiations before they occur, instructive.  The reasons for the assessments of the parties and the circumstances of the case must be evaluated by the Court.  
The Parties’ submissions
31	The plaintiffs submitted in each case that there was no proper basis on which to exercise the power to make the orders sought because it was neither appropriate nor necessary in order to ensure that justice is done in the proceeding.  It was put that, on the one hand, class closure would create real disadvantage to group members who were already vulnerable, and on the other, that class closure was unnecessary for the purposes of facilitating a productive mediation.  It was submitted that the plaintiffs’ opposition to the proposed orders ought be considered a strong factor against making them.
32	The case in relation to group member disadvantage is set out in more detail below, but in substance, it was submitted that the circumstances in which the group members entered into their loan contracts with the defendants are such that group members are not likely to have relevant records by which they can identify themselves as group members or work out, without assistance, how the proceedings affect their interests.  This will make it difficult to for them to proactively identify themselves as class members, which is a first and fundamental step.  In addition, the cohort in each case is likely to include people with other personal vulnerabilities.  Group members, as a result, need protection.  There has been little prior publicity about the proceedings.  Barring group members from participating in any settlement in those circumstances and where the notice they will receive will be the first time they have heard about the claims creates a disadvantage for them.
33	The plaintiffs accepted that if a settlement is reached, it will be necessary for group members to take the positive step of registering their interests to share in any financial distribution.  They accepted that the question then becomes whether taking that step should occur now, or only when a settlement is reached.  It was submitted that group members should be given “every opportunity” to learn about this case through an opt out notice and then a later notice upon settlement, and that “history and experience teaches that when there is money on the table people become actively engaged and come forward.”  Deferring registration will also allow for a longer period in which there is a “general awareness” of the proceeding.
34	The plaintiffs referred to the risks of the arbitrary and unintended consequences of excluding individuals who would otherwise remain in the class, as discussed in Kamasaee.  They accepted, however, that whether to close the class is a decision that must be made on a case-by-case basis.  It was submitted that in this case the utility of knowing how many people wished to participate in the proceedings and thereby assisting the forthcoming mediations, does not outweigh the prejudice that could be caused to group members who might be unintentionally excluded.
35	Moreover, it was said that the defendants have all the data necessary to make an informed decision about the quantum of the claims during the mediation process in each case.  The defendants have all relevant information about each loan contract, can identify by reference to the group definition which of their borrowers are group members, and can calculate the likely global loss under each head of damage.  The plaintiffs emphasised the observation of the Full Court of the Federal Court in Treasury Wine, that the Court should usually not exercise the discretion to make a class closure order based merely on a respondent's assertion that it is “unwilling to discuss” settlement unless such an order is made.  It was submitted that is not necessary for parties to achieve absolute certainty as to aggregate claim values.  In some cases, the courts have crafted orders for registration which provide for the respondent a sufficient understanding of the overall quantum of the claims.  It was also submitted that it is a common, if not inevitable, feature of opt out class actions that the defendant will be faced with uncertainty regarding the quantum of class members’ claims.  The defendant should not be able to “in effect dictate a different regime (i.e. by an “opt‑in” requirement)” by asserting that it could not settle without registration.”
36	ANZ submitted that in this case the ‘class closure’ orders would be just, expedient and in the interests of group members and parties. 
37	In the proceeding against ANZ there are 373,000 group members.  The potential quantum of each group member’s claim turns on individual facts.  There is complete uncertainty about how many group members would seek to participate in any settlement.  As a result, there is a very real prospect of considerable divergence in the parties’ positions at mediation about the quantum is issue.
38	A class closure order would enhance the prospects of settlement at the forthcoming mediation.  It would provide the parties and the mediator with critical information of the participating class and therefore the size of the total claim.  Instead of having debates about the likely percentage of group members who will participate in any settlement, that number will be known.  The prospect of differences in view between the parties about likely participation rates is magnified in this case because of the size of the class.  Even slight differences between the parties’ views will produce very substantial differences in settlement sums that will be discussed.  That is likely to be a very significant impediment to a possible settlement.  That impediment can be removed if the participation numbers are known.  Removing that uncertainty would also reduce the time, cost and resources required in preparing and conducting the mediation in relation to that issue.  The costs of assessing quantum can be substantial and are ultimately paid for by group members, usually by an allowance for costs incurred being deducted from any settlement sum.  Once it is known which group members are participating, more refined calculations can be made.
39	Where soft class closure orders have been made prior to mediation, the Court’s concern is to meet the objective of the Civil Procedure Act.  The securing of a settlement of the dispute at mediation, if that occurs, would benefit group members, parties and the administration of justice.  It would bring finality and certainty in respect of claims dating back as far as 2011, and almost three years after the first of these proceedings have commenced.  A resolution of the proceeding would also avoid the considerable time, cost and resources involved in the preparation and conduct of a trial and any appeals which is a particular concern in a proceeding given the individual nature of the pleaded claims.  Accordingly, a step that has a real prospect of enhancing the parties’ ability to achieve a negotiated outcome is a step that is in group members’ interests.
40	It was submitted that group members’ interests would be supported and protected in that process by the provision of “individual notice”.  The notice will say in substance that: 
The court has ordered you receive this notice because according to information available to [the defendant] you have been identified as meeting the criteria below and are likely to be a group member.
41	That fact is important for those people who are uncertain about whether they are group members. That is the baseline against which the asserted prejudice to group members in the registration process, is to be assessed. Group members will not in fact be in the dark.  Moreover, the Court will have discretion to allow group members to come back into the class, where it can be established that they did not in fact understand the notice or become aware of the process.  ANZ seeks that the proposed class closure orders be made “subject to further order”, which it submits is a “backstop” means of ensuring that no group member will in fact be adversely affected by the class closure process.
42	On the question of disadvantage said to be inherent in the class closure proposal, ANZ submitted that the plaintiffs’ position was in fact focused on those group members who are said to be prejudiced because they would decline to register their interest if required to do so before mediation “but would be motivated to register after a successful mediation”.  Among the entire class however, there are some group members who have already registered with Maurice Blackburn, some who will register upon receiving a notice, some who will not respond to any notice in whatever circumstances it is given, and some who have no desire to participate in the proceeding at all.  The class then, can be seen to consist of a number of cohorts.  There is no evidence about what proportion of the represented class belongs to the first cohort.  The identification and protection of group member interests must consider the whole class.  On the plaintiffs’ analysis, the interests of other group members (those who do not belong to the first cohort) are in fact marginalised.  Turning to the interests of the whole class, one can reasonably impute to group members as a whole, the understanding that the opportunity for these cases to be settled at mediation is a “tangible benefit”, and the understanding that the opportunity for a settlement to occur will be enhanced, the more that is known about the scope of the claim. 
43	As to asserted vulnerabilities, ANZ submitted that this is a class of people who have purchased a motor vehicle and obtained a car loan, which is not of itself a vulnerability. ANZ accepted that amongst 370,000 people there will be gradations of experience, education, financial literacy, but said that this case could be distinguished from cases such as Kamasaee, in which the class comprised asylum seekers with language difficulties and who had relocated to numerous countries, and who, on the evidence, had a high preponderance of mental ill-health.
44	ANZ submitted that the plaintiffs’ proposed “non-mandatory registration” process could not be relied upon to assist the mediation process as a substitution for class closure, where that process attaches no consequences to a failure to register.
45	Taking those factors into account, as the cases on which the plaintiffs rely have emphasised, the question requires a fact-specific answer and one cannot reason from a result in one case to the result that should follow in any other case.  In any event, there is no general rule that class closure orders prior to mediation are generally only made if it is with the consent of the plaintiff or when both parties come with that position to court.  In this case, the size of the class is a material fact.  Where a class closure order operates, as in this case, to facilitate the desirable ends of settlement, it may be reasonably adapted to the purpose of seeking or obtaining justice in a proceeding and may therefore be regarded as an order that is appropriate to ensure that justice is done in the proceeding, under ss 33ZF and 33ZG of the Act.  
46	Westpac submitted that the real question in issue is what is the best course to make mediation effective and efficient.  If that occurs, it is in the best interests of all parties, and of group members.  Class closure orders would remove constraints that inhibit the defendants’ advisors from providing the advice necessary to allow the defendants to productively engage in discussions and will maximise the prospects of resolution.  Absent class closure for the purposes of mediation, it is not presently possible for the defendants to determine from the potential group members the number of actual group members in a proceeding who wish to agitate their claims or the potential quantum of those claims.  Furthermore, the individualised nature of the claims is such that their quantum will depend on individual facts.  Once it is known how many people are participating and what jurisdictions they come from, the defendants will be able to make an informed assessment of quantum.  Transparency in the size of the class by a regime that requires registration of those persons who wish to come forward and pursue their claims, will enhance all parties’ understanding of the potential quantum of the asserted claims, thereby facilitating discussions within reasonable parameters at the mediation.
47	Westpac said that it was not seeking perfection; it presently has almost no understanding of the likely number of participants.  There are approximately 400,000 group members who have individualised claims.  The number of currently registered group members (less than 1 percent of the total potential class) does not assist it to make informed predictions.
48	In response to the plaintiffs’ submission that the proceeding could be mediated on the basis of assumptions about group member participation rates and if necessary, a return to mediation if those assumptions changed, Westpac said that the Court should be slow to accept the benefit of a “double mediation”.  That would inevitably entail inefficiencies and extra costs, with the matter returning to court, the likely need for additional rounds of notices to group members, and reconvened mediations.
49	Westpac submitted that the plaintiffs’ contention that group members would be prejudiced by a class closure regime was significantly overstated.  The effect of the proposed regime ought be assessed taking into account the steps that the Court will put in place to protect group members and notify them of their potential interests in these cases.  One starts with a notification regime.  The Court is entitled to assume that the notification regime as mandated by the Act is effective.  It will identify to each potential group members directly through email or post that they are potentially within the class.  It will detail the steps that they need to consider taking and the consequences to those members if they do not take those steps.  Although the class closure orders will preclude group members participating in the fruits of a successful mediation if they do not register within time, that fact is not of itself prejudicial – it could only be characterised that way if group members have not had adequate notice and therefore a proper opportunity to exercise their rights. 
50	Macquarie submitted that class closure orders should be made for the following reasons.
51	First, such orders would facilitate the desirable end of settlement by allowing both sides to understand the total quantum of group members’ claims and to cap any settlement amount by reference to the number of participating group members.  This is the only way a settlement can be sensibly structured in this case.  The parties have no way of knowing how many group members will come forward and seek payment in the event of a settlement.  It is important that the value of group members’ claims is not uniform across the class.  The loan contracts were negotiated between car dealers and group members meaning that the amount of the loan, the interest rate agreed and the amount of interest ultimately paid varied between group members.  This impacts upon the calculation of each group member’s loss.  The time at which the loan contracts were entered into is also important.  By reason of the limitation periods applying to the statutory causes of action, group members who acquired their loans prior to 14 October 2014 only have a more limited claim for relief for unilateral mistake.  Macquarie places much less value on those claims.  Some claims are highly individualised and will depend upon group members’ states of minds.  In that context, it is relevant to know how many group members genuinely think that they have been wronged. 
52	Accordingly, it is not feasible for it to make or consider offers based on a discount of the headline global loss for all potential group members.  The true quantum will depend upon the number and identity of group members who ultimately claim.  That fact is not contested by the plaintiffs, who accept that they need individual information to assist group members to identify what damages they might recovery if successful and how to assess the quantum of the claim themselves, for the purpose of mediation.  Making orders that allow that exercise to happen now, gives parties the best chance of resolving the proceeding at a Court-ordered mediation, before incurring the significant costs of preparing for a complex and lengthy trial.
53	As Macquarie put it, on a pragmatic assessment, without a class closure order the plaintiffs’ position is likely to be that the settlement amount should reflect damages projected on the basis of the difference between the base rate and the contract rate for the full cohort.  At that point, the parties are completely at sea.  Soft closure will give the parties an anchor point at which they may conduct negotiations.  Perfection is not required. Guidance is required.
54	Second, the desirable end of settlement will not likely be facilitated by a voluntary registration process.  Macquarie submitted that unless a class closure order is made, group members have no real incentive to register.  The response to the opt out notice is unlikely to give a realistic indication of the total value of participating group members’ claims.
55	Third, there is no reason to conclude that group members will be in a better position to register their interests following a settlement or judgment.  There is no reason to think that group members are going to read a second notice any more closely than they have read a first notice.  They will have a meaningful opportunity to exercise their rights upon receiving the proposed class closure notice which will be sent individually to group members (noting that Macquarie holds contact for details of all but three potential group members).  There will be no appreciable risk that people will be shut out from participating because they failed to become aware of the proceeding.  If class closure does not occur, all that will happen between now and then is that there will be another six or 12 months’ worth of costs incurred and that is all going to come out of the available amount that could be contributed to a settlement and it is ultimately to the detriment of group members. 
56	Furthermore, to the extent that any group member who wishes to participate fails to register by the deadline, the proposed orders do not automatically extinguish their claims.  That will only occur if a settlement is reached and the Court makes an order binding the group members to the settlement.  That process represents a “safety valve” through which the Court can address any perceived unfairness arising from the making of the orders.
57	Fourth, as Macquarie put it, the plaintiffs’ “perverse logic” that the Court should wait until there is money on the table before ordering a class closure should not be accepted.  By resisting a class closure order now, the plaintiffs are undermining the chances of achieving settlement for the benefit of class members — a matter of particular concern to those group members who are willing to come forward and claim now rather than risk having their claims fail at trial.  The substance of what is put against the soft closure orders is that unless you can publicise the fact of a settlement that there is money in the pot, people will not come forward.  There is an obvious circularity in that contention.  A settlement cannot be announced unless there is a settlement reached and therein lies the problem.
58	Macquarie accepted that the plaintiffs’ opposition to the proposed orders is a relevant consideration but said that it was wrong to treat it as quasi-determinative or having such weight that it would arrogate to the plaintiffs what is a matter for the Court.  The weight of that fact can only rise as high as the weight of the justifications for the withholding of consent. 
Disposition
59	For the reasons that follow, I consider it appropriate in order to ensure that justice is done in each of these proceedings, to make the “soft class closure” orders essentially in the form sought by the defendants, exercising the discretionary power conferred on this Court under ss 33ZF and 33ZG of the Act.  Relatedly, I will order that the defendants produce data to the plaintiffs’ solicitors to enable them to assist group members who seek information from Maurice Blackburn about the opt out and registration process and the effect of the Court’s orders on their rights and interests.  Mr O’Brien and ANZ have reached an agreement in respect of the production of data.  Macquarie and Westpac will be required to produce data via a “unique database” in each case, as discussed below.  These orders will be made subject to further order.  The notice regime to apply is addressed in Part D below.
Evidence and Analysis
60	Although it is convenient to consider the evidence and arguments within broad categories, the issues informing the conclusion as to the proper exercise of discretion are inter‑related, and I have evaluated them together.
The stage that the proceedings have reached
61	Each of the proceedings is at a relatively advanced stage.  The first in time was commenced almost three years ago.  They concern causes of action that date back as far as 2011.  Given the steps that have occurred, I consider it is likely that both parties in each proceeding now have a developed understanding of the factual, evidentiary and legal issues relevant to the litigation which will allow for assessment of their prospects of success.  No party submitted that the acquisition of new information was necessary to facilitate productive negotiation at mediation, save for the defendants’ position in respect of group member registration.
Group members’ ability to access information about the proceedings and their potential claims 
62	Maurice Blackburn has made available to group members a registration facility on its website since June 2020.  At the time of this application, 3,734 people had registered their interest in the Westpac proceeding (in relation to 3,920 loans); 1,231 people had registered an interest in the ANZ proceeding (in relation to 1,263 loans); and 315 people had registered their interest in the Macquarie proceeding (in relation to 327 car loans).  The registration form sought from each registrant (among other things) their loan account number, details of the car dealer through whom the finance was obtained, interest rate charged per annum, loan term, and a copy of their loan documents.
63	Mr Watson’s evidence was that the information provided by registrants across the proceedings was deficient or inaccurate in many respects.  Over 75% of registrants did not upload their loan documentation despite request.  Without that documentation it is not possible for Maurice Blackburn to verify with certainty whether a person is a class member.
64	A significant number of registrants said they did not have the information requested in order to answer a number of the information requests.  A significant number were not able to identify their lender and many were not able to recall their loan details.  Many registrants did not know the interest rates that they were charged.  Some confused Macquarie Bank with Macquarie Leasing, the former being the second defendant in the ANZ proceeding and the latter being the subject of the Macquarie proceeding.  Some people who contacted Maurice Blackburn expressed a belief that they had obtained a loan through a dealership but it was subsequently ascertained that they had obtained it from another intermediary such as a car loan broker, with the result that they were not group members.
65	Mr Watson’s assessment, based upon the experience of Maurice Blackburn staff in dealing directly with group members who have attempted to register their interest in a proceeding, is that lack of information, misunderstanding and confusion of the kind described is likely to arise from a number of causes, namely:
(a)	The fact that group members appear for the most part not to have been provided with electronic copies of their loan contracts (a fact not disputed by the defendants in any of the proceedings) and tend to have difficulty locating hard copies in circumstances where the loan transactions in many cases occurred several years ago.
(b)	The loans the subject of the proceedings were sold by dealers as intermediaries for the lenders, meaning that the exposure of group members to the lenders themselves was very limited, leading to a confusion of roles and responsibilities.
(c)	The lapse of time since group members entered their loans which made it difficult to recall if they had not retained documentation.
(d)	Consumers’ main focus at the point of sale being on the selection of their preferred vehicle, meaning that they have far better recall of the details of the car and the car sale negotiation than of the car loan and ancillary products.
(e)	The fact that the Esanda business, the subject of the O’Brien and ANZ proceeding, was sold to Macquarie Leasing with the result that those consumers who had previously entered loans with Esanda were transferred to Macquarie in and after 2016.  
(f)	The use of “white label” arrangements whereby the finance provided by some lenders was offered under documentation bearing the brand of the relevant vehicle manufacturer and not the lender’s name, at least not prominently.
(g)	The fact that some group members incorrectly understand that they are not eligible to claim in the proceedings where their loans have been paid out.
66	It was also submitted that group members may be confused by their overlapping membership of more than one class action addressed to similar claims.  Maurice Blackburn represents the plaintiffs in two proceedings issued in this court in 2020 and 2021 concerning “add-on insurance” and a similar action in the Federal Court.  Those class actions also concern products sold to consumers at the point of acquisition of a car, through a dealership.  When purchasing a car, consumers not uncommonly obtained both finance with flex commission-related interest rates and add‑on vehicle insurance. Some consumers are group members in more than one proceeding concerning different aspects of their dealings with the one motor vehicle trader (finance and insurance).  The point that the plaintiffs sought to make from this evidence was, the fact that some group members are members of more than one class, would add complexity and possibly confusion to their decision making about these proceedings.
67	Mr Watson’s expectation, informed by the dealings of Maurice Blackburn staff in in these proceedings and in other similar proceedings, was that group members will contact Maurice Blackburn in response to any opt out registration notice with questions of this kind:
(a)	am I a class member?
(b)	to which car does the car loan relate?
(c)	where or through whom did I enter the car loan?
(d)	what was the interest rate applicable to the loan?
(e)	for how long did the loan continue?
(f)	how much did I pay in respect of the loan?
(g)	how much could I receive from the class action or “what’s in it for me”?
68	Mr Watson referred to what he described as the unique and complex challenges in consumer class actions in which group members often have inadequate records or recall of their consumer transactions which may have taken place years before.  This makes it difficult for them to proactively identify themselves as class members.  If they are uncertain as to whether they are group members, they are much less likely to take the proactive steps required by any class closure mechanism.  The lack of information in cases of this kind can be contrasted with the level of and ease of access to information held by group members in relation to their shares that may become the subject of shareholder class actions.  Furthermore (as discussed earlier) group members have been sold products by intermediaries and are often confused about the roles and responsibilities of the motor car dealers on the one hand, and the roles and responsibilities and even the identities of the lender who the dealer represents, on the other.  Mr Watson’s opinion was that unless information was available to registrants of the kind sought on the Maurice Blackburn registration form, it is very difficult and nigh on impossible to answer registrant queries about their car loan to establish whether in fact they are class members and in relation to which proceeding.
69	The defendants emphasised the significance of the fact that group members in this case will receive notices addressed to them individually, stating that according to the lenders’ records they have been identified as group members.  The notices will be plainly and obviously Court-ordered, and in language settled and approved by the Court.  Notice of that kind, they submitted, can leave no recipient wondering whether they are in fact a group member and will put group members on effective notice that they need to take steps in relation to the proceeding.
70	I accept that the receipt of individually addressed notices is a significant measure that I can take to be effective in informing group members of the existence of the proceedings.  I accept that group members who receive those notices will start from a baseline of having been told in a notice from the Court that according to the relevant bank’s records, they in fact are group members in the proceedings.  I consider that the likely confusion to which Mr Watson adverts will be ameliorated by the receipt of a notice (although they ought to have the benefit of further assistance, as discussed below).  Section 33Y(4) of the Act provides that the Court must not order that notice be given personally to each group member unless it is satisfied that it is reasonably practicable and not unduly expensive to do so.  As set out below, I am satisfied on both counts.  There was no dispute between the parties in any of these proceedings that personal notice should be given.
71	I also accept, for the reasons advanced in Mr Watson’s evidence, that it is likely that a least some group members – meaning a proportion of those who have an interest in finding out about the proceedings and potentially participating in any settlement – will reasonably want to contact a qualified person who can verify what is set out in the notice, and ascertain what the proceeding might mean for them.  The notice will not address personal circumstances but will only say that they have been identified as a likely group member and provide clear information about the proceeding, opting out and registration.
72	It was submitted that in the circumstances it is appropriate that the defendants produce information held by them regarding group members’ loan agreements, that will enable Maurice Blackburn to satisfactorily answer group member enquiries and advise them about their options and rights in respect of the proceedings.  The plaintiffs submit that it is necessary for them to have that data regardless of whether group members are required or invited to register.  In substance, data is sought on an individual group-member basis so that individual group member inquiries can be answered by reference to it, and includes group member contact details last known to the defendants, contract numbers and details of the vehicle to which each loan relates, certain terms of the loan agreements including the interest anticipated to be paid under the loans, and the base rate of interest in effect with the relevant dealership at the time the loan for each group member was made.  It was submitted that that same data would also be necessary to enable to the plaintiffs to prepare to mediate the proceedings.
73	Although the plaintiffs opposed class closure irrespective of whether the data was to be produced, one of the bases on which they did so was that without adequate information available to them in a useable form, the plaintiffs’ solicitors could not answer group member questions and could not meaningfully assist them in deciding whether to opt out or remain in the proceedings.  It would be unfair and accordingly inappropriate to make orders closing the class in any proceeding in those circumstances.  Group members could not fairly be expected to make an informed decision to register (or decline to register their interests) without that assistance, and in those circumstances a failure to register an interest ought not attract the consequence that group members who did not register would be excluded from participating in any settlements following upon the foreshadowed mediations. 
74	I consider that in the circumstances, the opportunity for group members to seek information and advice from the solicitors for the plaintiffs will substantively enhance their ability to effectively exercise their rights in respect of participation in the proceedings.  In this context, that opportunity means in practice, that upon receiving notice of the proceeding, group members who wish to be assisted can readily contact Maurice Blackburn, and that Maurice Blackburn will be able to provide the caller with information about their group membership, opting out and what participation is likely to mean for the group member.  I do not mean to say that group members cannot effectively exercise their rights unless personally they engage solicitors to act for them.  Rather, the solicitors for the plaintiffs need to be given access to information adequate to be able to assist group members in the fashion described.
75	At the time at which these applications were heard, the defendants had refused to provide the data sought by the plaintiffs.  The defendants later agreed to provide the data (subject to court order) although only ANZ agreed to provide it in the form that the plaintiffs preferred.  
76	Macquarie and Westpac agreed to grant to Maurice Blackburn access via unique databases created in each case for the purposes of enabling Maurice Blackburn to see group member data in response to inquiries from individual group members, but not to aggregate the data or access the entire data set by the submission of queries related to the data as a whole.  The unique database solutions are described more specifically below. 
77	I am satisfied that upon Macquarie and Westpac granting access to Maurice Blackburn to group‑member data via unique databases, Maurice Blackburn will be able to assist group members in the manner discussed.  It will enable Maurice Blackburn to answer questions of the kind Mr Watson described.  The plaintiffs did not resist that proposition.  
78	I am satisfied that upon ANZ providing group member data to Maurice Blackburn as agree between ANZ and Mr O’Brien, Maurice Blackburn will be able to assist group members in the manner discussed.
79	It follows that I consider that the plaintiffs’ solicitors should assist group members in this way and that that role should not be performed by a third-party mailing house, as ANZ initially proposed. ANZ had proposed that its nominated mailing house assume a triaging role for group member enquiries.  I need not describe that proposal any further, because ANZ’s position moved on and it agreed to provide data to Maurice Blackburn directly, to allow it to assist group members.  The plaintiffs had submitted with considerable force, that ANZ’s proposed process would be cumbersome, time-consuming and inefficient; that it would be onerous for group members to navigate and that it would not facilitate their immediate or near immediate engagement with staff who were knowledgeable about the proceedings and their implications for group members.
80	Mr Watson said that group members are more likely to be financially vulnerable and from lower socio-economic sections of society, including a higher percentage of a younger demographic, who may be more unfamiliar with legal processes and lawyers than, say, class members in shareholder class actions. As a result, communications with group members are often more involved than those required in shareholder actions.  Macquarie submitted that the description of the group is puzzling because that group consisted of everyone who financed a car through Macquarie through a dealer.  As Macquarie’s senior counsel put it, “there are Porches, Bentleys, and sophisticated, savvy members of the class.”  That point was principally directed to the submission that the gross number of group members calculated by reference to those persons who had loan contracts of the relevant kind with the defendants, is uninformative of the question of who would in fact participate in the proceeding claiming an entitlement to damages on the grounds of having been misled, not having understood basic elements of the transaction and so on.  Although the evidence on the question of demographics was very scant, I accept that amongst the represented class in each case, there is likely to be a wide gradation of personal circumstances and experiences with matters of finance and legal proceedings, including group members who might have difficulty understanding legal contracts and notices, and also including financially literate and well-resourced individuals.
81	I accept that there may well be, within the represented classes, group members who will have a need or desire to discuss what they read in a Court-ordered notice, with an informed representative of the plaintiffs.  They should have that opportunity.  I also accept that Maurice Blackburn can assist group members in that way provided they have access to group member data.  Accordingly, I do not think that demographic point materially changes the analysis.  I consider that group members who seek and require assistance can effectively obtain it under the orders I intend to make.
82	The remaining point on the question of group members’ decision-making processes was that, on the plaintiffs’ submission, group members should be given “every opportunity” to decide whether to take the positive step of registering an interest in the proceeding. 
83	The plaintiffs accepted as they must, that were in-principle settlements reached, it would be necessary for group members to register, in order to claim a benefit in any settlement.  The plaintiffs’ case was that group members should not be required to register now, but instead, only after any settlements were reached.  The answer to that question requires several considerations to be balanced, including the utility of class closure to the parties’ ability to settle the proceedings (as to which, see further below).  However, it was put that group members who were apt to be confused and lacking information about the proceedings should be afforded the additional protection and benefit of having received two notices about the proceeding (an opt-out notice now and a class-closure notice later) and of the elapse of time between now and a future date, after any settlements are reached.  It was submitted that with the elapse of time, the “general awareness” of the proceedings would increase.
84	The latter point was made against the background of the proceedings having attracted some publicity but not a great deal.  Mr Watson described Maurice Blackburn’s efforts to publicise the proceedings to date as “not extensive”.  There were limited and focused media campaigns immediately preceding and upon commencement of the proceedings.  The defendants said that the subject matter with which the proceedings are concerned has been publicised over a number of years.  The Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry conducted a case study regarding car finance in March 2018 during which reference was made to the use of flex commissions.  The decision of ASIC to prohibit the use of flex commission remuneration structures and the existence of the current proceedings against ANZ, Westpac and Macquarie have been the subject of media coverage.  ANZ produced media articles from May 2018, July 2020 and September 2021.  The proceedings have been advertised on the websites of this Court and of Maurice Blackburn since shortly after their commencement.  I accept that there has been some media coverage, but limited coverage, of these proceedings.  Media coverage is not a substitute for group members being told that they must take a step in a proceeding in order to opt out, or to participate in a future settlement if it occurs.
85	Mr Watson’s opinion was that barring potential class members from participating in any settlement in circumstances where there has been little prior publicity and where the notice they receive will be the first time they have heard of the claim creates an unreasonable disadvantage for members of the group.  By contrast, it was said that if some form of class closure occurs after an in-principle settlement, group members will be better informed.  It was Mr Watson’s experience that in large consumer actions of this kind, many consumers only take proactive steps when they know they stand to receive compensation.  As noted earlier, the defendants submitted that there is no real basis on which to conclude that group members would be in a better position to exercise their rights upon receipt of a second notice issued after any settlement occurs, than they will be on receipt of one notice issued now, requiring them to register in advance of mediation if they wish to benefit from any settlement. 
86	Having regard to what I have set out earlier in relation to the opportunity for group members to seek and obtain information about the proceedings via Court‑ordered notice and from Maurice Blackburn, I do not consider that group members will be unfairly disadvantaged by being required to register their interests in the proceedings at this time, as opposed to some later time, when settlements are reached, if they are reached.  The circumstances of the represented classes, insofar as they are known, are significantly different from say, those represented in the Kamasaee proceeding.  The differences are apparent from the matters set out earlier.
87	I accept that Mr Watson’s experience is that the fact of an in-principle settlement having been reached can tend to motivate group members to take positive steps to engaged with a group proceeding.  Noting the observational nature of that evidence, it might be thought that a carrot (registering to participate in an in‑principle settlement) can provide more effective motivation than a stick (registering so as not to lose one’s rights to participate in a possible future settlement).  However, how much difference if any, the receipt of a second notice with advice about an in‑principle settlement would make to group members who had not taken steps to voluntarily register at an earlier point in time, is a matter of speculation.
88	The principal concern of the Court in this context is whether group members have an effective opportunity to exercise their rights.  The obverse of that proposition is that relevant prejudice is the loss of rights without an adequate opportunity to make an informed choice.  I accept that incentives to act can enhance the opportunity to exercise rights and might in certain circumstances be a necessary part of the opportunity to act.  However, it was not shown in this case that without an incentive to act in the form of “money on the table”, there is a real prospect that group members will not be able to exercise their rights.  The fact that notice of an in-principle settlement might motivate some group members to take an active step, does not establish in this case that the requirement to register an interest without a settlement on the table as it were, causes prejudice.
89	In this case, there was no persuasive evidence that group members (or any sub‑set of group members) will be at any appreciable risk of not being able to make informed choices, in circumstances where they can, on learning about the proceedings via a notice, seek information about their circumstances from the plaintiffs’ representatives.  
90	It should be recalled that the circumstances relevant to this issue evolved between the time at which the evidence was filed and the final hearing, by which time the defendants had agreed to provide group-member related data.  Although the plaintiffs’ position did not change, their evidence was addressed to group members’ difficulties in grappling with the implications of a class closure notice without the benefit of the provision to Maurice Blackburn, of that data.  
91	The defendants submitted that here was a degree of circularity in the plaintiffs’ “not now but later” point.  As they put it, by deferring class closure until settlement is on the table, the plaintiffs want to remove the very circumstance that will, on the defendants’ assessment, be likely to improve the prospect that settlements will in fact be achieved.  There is a degree of truth in that, but how far it takes the matter depends on the emphasis given to the competing factors in play.  As I have said, on the ultimate question (whether to close the class now) all the relevant considerations have to be assessed together. 
Utility of class closure orders for mediation
92	Mr Watson’s opinion was that mediations in these proceedings could be effective without class closure orders.  He said that the defendants already had sufficient information by which to identify group members and to calculate their losses because their systems recorded the contract rate and base rate for each flex loan and the total amount of interest paid on each loan.  It was said that that information was sufficient to form an assessment as to the global loss for all class members under each loss measure for which the plaintiffs contend.  More generally, the plaintiffs submitted that class actions can and do settle on an open class basis, and that the defendants were relying upon a feature inherent in all “opt out” regimes which of necessity, require parties to grapple with a degree of uncertainty as to group membership.  That is not enough to “convert the proceedings into opt in proceeding”. 
93	The fact that the defendants had that information was not in contest.  The parties were apart on its utility for conducting meaningful negotiations. Without class closure, what the parties do not now know, is how many group members will in fact participate in the proceedings and claim a benefit in any settlement.
94	ANZ’s solicitor, Ms Overington, said in her experience, clarity about the number and identity of group members who seek to participate in any settlement greatly enhances the prospect of a successful mediation because it enables the parties to identify with reasonable precision the quantum of the claims being actively prosecuted in the proceedings.  Without that, the parties are left to speculate as to the quantum of the claim.  That reduces the ability of the parties to reach a settlement given the scope for disagreement about the value of the claims being prosecuted.  Ms Overington said that she considered the identification of participating group members prior to mediation to be particularly important not only because of the size of the group but because of the difficulties in estimating quantum, given the individual nature of each group member’s claim.
95	The solicitor for Macquarie, Ms Hofbrucker, said that the relatively low number of registered group members to date had created significant uncertainty around the number of group members likely to make claims and the quantification of those claims and that such uncertainty materially increases the risk that mediation would be unsuccessful without a registration regime, because of the absence of any objective referent point by which the parties could make informed assessments of quantum. 
96	Westpac’s solicitor, Ms Saville, said that because the quantum of group members’ claims would be determined by reference to individual factors, absent class closure it would be difficult to advise the defendants in relation to the size of the claim the potential quantum of group members’ claims and parameters for the purposes of mediation.  Accordingly, it would be difficult for the defendants to engage in meaningful settlement discussions out of mediation, expressing the belief that the matter is unlikely to be capable of resolution otherwise.
97	I asked the plaintiffs’ counsel to address in argument, the fact that the group member participation rate would substantially influence the quantum of any potential settlement in each case, because of the very large number of group members. The plaintiffs’ answer was, in substance, that participation rates can be built into any settlement regime.  Settlements can be agreed in principle, with offers predicated on assumptions and if those assumptions proved to be inaccurate the matter could return to mediation.  That being so, group members “should not be prejudiced in an effort to achieve perfection in knowing participating group member quantification.”  The plaintiffs accepted that very little was known at present about possible rates of participation.
98	Sometimes, multiple mediations are necessary to resolve a case. Some cases are unresolvable except by a judgment of the Court.  Multiple mediations can be expected to add appreciable costs and delay.
99	The defendants’ submissions about the significance of participation data are set out above.  As they put it, they are not seeking perfection or absolute precision.  Rather, they are looking to establish a reasonable framework within which to assess quantum.
100	I accept that data in the defendants’ possession about group members’ contracts will permit them to make global assessments of the value of the pooled claims in the proceedings, assuming every group member sought to claim in the proceedings.  In any open‑class group proceeding, those who participate in a distribution of compensation will be a proportion of the total class.  Generally speaking, to estimate the quantum of a claim for the purposes of settlement negotiation it is necessary to apply to the estimated total gross damages amount, discounts for participation rates, and discounts for liability and other risks.  In these cases, the parties will likely take different views about liability risks, but there is much information that is known to both sides that will inform their respective assessments.
101	However, I accept the defendants’ submission that there is a real prospect that the parties’ knowing the maximum damages pool without more, will lead to substantial disputes about likely participation rates.  There is real force in ANZ’s submission that without knowing how many group members are participating, the sheer number of group members in these proceedings will magnify the differences between the parties on that question.  As ANZ put it, even a small difference between the parties on assumed participation rates will have significant consequences for the dollar amounts in issue.  The plaintiffs did not say how generic assumptions about participation rates gleaned from other cases, might assist the analysis of quantum. 
102	I accept, as is the fact, that class actions can be settled and have been settled without class closure.  It is impossible in any case for a court or a party to know with any certainty, what difference a class closure order will in fact make.  Parties on opposite sides will necessarily address the question from their own perspectives.  The question whether to exercise a discretion to close an open class proceeding permits and indeed requires an exercise of judgment by the Court.  It is my judgment that the ascertainment of the number of group members participating has a real prospect of making a material difference to the parties’ ability to reach agreement on the quantum at stake in these proceedings.  In my view, registration of group members (which will produce for each proceeding a total number of participating group members) will considerably improve the parties’ ability to negotiate on the basis of facts rather than disputed assumptions.
103	By according significance to participation numbers, the defendants are not, in my assessment, seeking perfect knowledge or refusing to negotiate unless their demands are met.  They have made rational cases for the orders they seek.  And nor are these applications for class closure orders an attempt to “convert” the proceedings into something they are not.  The presence of s 33G within Part 4A of the Act, makes that plain.
104	The defendants’ cases addressed two types of participation data. The first is the number of group members wishing to participate in the proceedings.  That fact will be known for each proceeding if orders are made, closing the classes.  
105	The second concerns information about the participating group members that the defendants said could permit both sides (plaintiffs and defendants) to make more granular assessments, by reference to the contracts for the registered group members. 
106	The plaintiffs expressed concern about the provision of information to the defendants that would identify which group members had registered. This, they submitted, would be unorthodox. In a similar vein, Macquarie and Westpac have resisted providing unrestricted data to the plaintiffs, meaning data that they can aggregate and assess on a group-wide basis.  The plaintiffs say that they need that data to prepare for mediation.  
107	Accordingly, there remains the question of what further information should be produced to each side in each proceeding, to ensure that the mediations have the best possible chance of succeeding. That question requires separate consideration. The mediations of these proceedings will occur before Efthim AsJ, who is managing pre‑mediation steps.  With the understanding that the classes will be closed, the parties can address the manner in which further data can be exchanged, to be determined by the Court if it cannot be agreed.  It may be that de-identified data will go some way to addressing the parties’ respective needs.  
108	The plaintiffs submitted that instead of closing the class in each case, I should order that group members be invited and encouraged to register their interests in the proceeding but without any consequence attaching to non-registration. 
109	I accept, as the plaintiffs submitted, that the extent to which group members are likely to register voluntarily cannot be gaged by simply taking the low number of existing registrants to date, as a proxy. That is because so far, no direct communication from the Court to group members, has occurred.  The plaintiffs went on to submit that a high level of engagement with a Court-ordered notice (advising of the right to opt out and inviting but not requiring registration) could be expected.  There was a degree of tension between the latter submission and the plaintiffs’ position that generally speaking, group members tend to take active steps to participate in a proceeding only once a settlement is on the table.  
110	There is no real evidence about what could be expected from voluntary registration. These are all assessments that involve questions of degree.  By its very nature, “voluntary registration” will not produce the degree of certainty that will be achieved by class closure.  Furthermore, it is reasonable to conclude that a requirement to register with a consequence for not registering, will provide greater incentive to group members to register, than a mere invitation.  
Conclusion
111	The plaintiffs opposed this step because of a concern that group members might be disadvantaged were they not permitted every opportunity of deciding to participate.  More particularly, the disadvantage with which they are concerned is a requirement for group members to register now, rather than at some later point when, if it occurs, a settlement is on the table.  For the reasons set out, I do not consider that group members will be unfairly disadvantaged by being required to register their interests in the proceedings at this time, as opposed to some later time.  The evidence does not indicate that without an incentive to act in the form of “money on the table”, there is a real prospect that group members will not be able to exercise their rights effectively.
112	If in the future any group member can show that, contrary to my expectations, their rights were in fact unfairly prejudiced, they will be at liberty to apply to be admitted back into the class from which they were excluded.  The orders that I will make will include that “safety valve”.
113	Consideration of whether group members ought be required to take any positive step in a proceeding must depend on a case-by-case assessment.  In different circumstances a court might be reluctant to make any orders limiting group member participation in a possible settlement, until such time at which no benefit could be received without a positive step.  In other cases, the risks attached to requiring group members to take a step might to be too significant to weigh the balance in favour of certainty for settlement purposes. Kamasaee was such a case; the circumstances of these cases are different.
114	Neither the Court nor the parties can know at this juncture, whether any of the proceedings will settle.  However, a step that is judged to be likely to assist the parties to resolve the proceedings is a step towards producing a tangible benefit for group members.  If the proceedings are resolved on terms that meet Court approval, group members will have avoided the substantial additional costs of trial and the risks and uncertainties inherent in litigation.  For the reasons set out, I consider that closing the class in each case is a step likely to assist the parties to resolve the proceedings.  It may be understood in that way including because, in these circumstances, it can occur without unfair prejudice to group members.
115	In such circumstances, orders closing the class in each case serve the overarching purpose.  As the Court of Appeal said in Regent Holdings (in the context of an application for discovery and particulars to be given by group members in a group proceeding),
We take it to be self-evident that it is desirable that proceedings be settled; and, in Victoria, Ch 2 of the Civil Procedure Act 2010 obligates courts and litigants alike to strive to achieve that end. …
… The more accurate and complete the available information as to quantum, the more likely that rational settlements will be achieved.
116	In each of these cases, the size of the class is material fact.  Where a class closure order operates, as in this case, to facilitate the desirable ends of settlement, it may be reasonably adapted to the purpose of seeking or obtaining justice in a proceeding and may therefore be regarded as an order that is appropriate to ensure that justice is done in the proceeding, under ss 33ZF and 33ZG of the Act.
117	Although the defendants’ “cohorts” analysis had its limits (because it is an analytical tool, not a description of real-world relationships between group members) it usefully points to the spectrum of group member interests that the Court must consider. I consider that the orders I intend to make appropriately balance the interests of affording group members with a proper opportunity to exercise their rights in deciding whether to participate, and their interests in ensuring that the proceedings have the best possible chance of reaching negotiated outcomes and that that occur sooner rather than later.
118	I have carefully considered the plaintiffs’ evidence and their submissions opposing the class‑closure orders. I consider that the burden of the plaintiffs’ rationale for opposing class closure is addressed in the orders I propose to make (including the orders for the production of data) and that the balance struck by the orders is in the interests of the plaintiffs and group members. 
Part C: Plaintiffs’ access to defendants’ data
119	This issue concerns only the Fox v Westpac and Nathan v Macquarie proceedings.  The data issue has been resolved between Mr O’Brien and ANZ.
120	As I have said, I will require the defendants to provide to the plaintiffs’ representatives, data held by them concerning group members, for the purpose of enabling them to assist group members who seek information from Maurice Blackburn about the opt out and registration process and the effect of the Court’s orders on their rights and interests.  Macquarie and Westpac will be required to produce data via a “unique database” in each case, described more particularly in the Annexure to this judgment. The databases will provide Maurice Blackburn with secure access to relevant information about potential group members who contact it seeking information about opting out or registration.  Upon provision of simple identifying information from the group member, Maurice Blackburn staff will be able to access the database and obtain details concerning that group member’s loan contract and convey the information to the group member.  The orders will provide that the searches performed by Maurice Blackburn staff may not be seen or monitored by the defendants or their legal representatives.
121	The issue evolved in this way.
122	When the applications came on for hearing each of the defendants resisted production of their data.  They did so on the basis of data security and privacy concerns.  Westpac and Macquarie emphasised slightly different considerations in their submissions but in summary, they each said that:
(a)	It was not necessary for the plaintiffs’ representatives to obtain confidential bank‑customer information for all potential group members; it was necessary only for them to answer queries of those seeking information or advice.  Information about the loans provided to registered group members may be useful at mediation, but that could be shared consensually once registration had occurred.
(b)	If a power to compel production of that data exists, it should be exercised with a degree of circumspection and caution.
(c)	Production of confidential personal and financial information about group members who do not elect to participate in the proceedings would be inconsistent with the defendants’ data security obligations.  Each of the defendants is an Australian Prudential Regulation Authority (APRA) regulated entity who is required to comply with APRA Prudential Standard CPS 234 – Information Security (CPS 234).  An objective of CPS 234 is to ensure that APRA‑regulated entities have in place appropriate information security capabilities to be resilient against information security incidents.  It requires regulated entities to take measures to protect data against information security incidents, including the requirement to assess the information security capability of a third party who manages the entity’s data.  Clause 16 of CPS 234 provides:
Where information assets are managed by a related party or third party, the APRA-regulated entity must assess the information security capability of that party, commensurate with the potential consequences of an information security incident affecting those assets.
(d)	Following recent cyber-attacks on companies including Optus, Medibank, Woolworths, HWL Ebsworth (the fact of which in each case was publicly reported) the defendants are concerned about cyber security risk and taking steps to protect customer data and reduce the risk of potential customer harm.  They each have in place established data transition protocols that promote the secure and efficient transfer of data to third party contractors.  They have not been able to adequately assess the data security measures in place at Maurice Blackburn.  The parties have had communications about this issue but they have not been resolved satisfactorily.
123	The plaintiffs contested the validity of the data security concerns.  They submitted (on the basis of evidence given by Mr Watson) that the firm routinely receives and stores information from clients, group members and other parties produced in litigation.  Maurice Blackburn has in place a privacy policy and would store data on a secure server Maurice Blackburn was open to considering other reasonable steps if requested by the defendants.  They submitted that CPS 234 is not concerned with regulation of the manner in which parties to litigation may produce and receive data.  Further, once data produced by the banks was provided to Maurice Blackburn it would be held on its own behalf and not on behalf of the defendants.  To the extent that the defendants were concerned about customer privacy, the Privacy Act 1998 (Cth) permits the use or disclosure of personal information required or authorised under a court order.
124	After hearing arguments, I informed the parties that I was persuaded that there was substance in the contention that Maurice Blackburn should have access to group member‑related data, without which they would encounter real difficulty assisting group members on the question of whether to opt out or register an interest in the proceedings.  I asked the parties to consider whether, in view of the defendants’ data security concerns, the provision of data via a unique database solution (of the kind now agreed) would be technically feasible, able to be constructed without appreciable delay or cost, and whether it would meet the practical needs of the plaintiffs so that Maurice Blackburn could assist group members in an efficient and effective way, while assuaging the stated concerns of the defendants.  I emphasised that the concept was no more than a suggestion for consideration.
125	After a period of negotiation, the plaintiffs and Macquarie agreed upon what data should and could be provided.  The plaintiffs and Westpac were apart on what should be provided, but those differences have now been resolved.
126	Both defendants reached the view that the “unique database” solution was feasible and could be prepared with minimum delay. They submitted that producing data in that way was the most appropriate course to adopt.  It would provide Maurice Blackburn with secure access to relevant information whilst protecting the security of potential group members and complying with the defendants’ respective information security requirements that minimise the risk of harm to their customers in the current heightened cyber security risk environment.  In this way, the interests of potential group members in ensuring data security are suitably balanced against the benefit of Maurice Blackburn being able to respond to individual queries from potential group members about registration.  The plaintiffs maintained that group‑member data should be provided on an unrestricted basis, meaning that it should in each case be transferred directly to Maurice Blackburn without the need to access it via a unique database, such that the whole dataset could be searched and aggregated in each case.
127	When the matter returned to Court the plaintiffs submitted that:
(a)	On the question whether production of data via “unique databases” would meet the practical needs of the plaintiffs by empowering Maurice Blackburn to readily answer group member queries, counsel for the plaintiffs said candidly that it was not submitted that if data were provided in a database searchable form, that Maurice Blackburn could not readily assist group members in the manner discussed.  The plaintiffs were clear that they were not submitting that if information were received in that way, they would encounter practical impediments in assisting group members to help them make informed decisions about the proceedings.  They made that position clear, in answer to questions from the Court during argument.
(b)	Rather, it was put that it would be more efficient if a consistent approach was adopted across all three proceedings.  The consistency point was driven by the fact that the plaintiffs and ANZ have agreed that ANZ will produce data to the plaintiffs without the need for a database.  It was submitted that there were “real efficiencies” to be gained by the production of data in a consistent manner across all three proceedings.  Where there are large volumes of data, one central repository or methodology for assessing group member claims would make sense.  Otherwise, when a potential group member telephoned Maurice Blackburn the operator would need to work out which system had to be used.  If data was produced in a way that allowed the solicitors to manipulate it, it would more readily and effectively retrieve information to assist group members.  The creation of multiple unique databases would add complexity and extra cost.  The complexity and extra cost were not otherwise explained.  No evidence was given on that subject.  It was not said that call centre operators or lawyers responding to group-member inquiries would be hampered in assisting group members by the need to access a different data set for each proceeding.
(c)	It was also submitted that it makes sense that data be provided once, in a manner that can be used for dual purposes – namely the opt out and registration processes, and the analysis of quantum for mediation.
(d)	The plaintiffs contested the relevance of CPS 234 and maintained that it has no application to these circumstances, for the reasons earlier submitted.  It was said that once produced, the data belongs to the plaintiffs and that copy of the data is no longer an information asset of the bank, although its use in the plaintiffs’ hands is protected by the usual undertakings.  Further, paragraph 16 of the standard provides that where information assets are “managed by a related party or third party” the regulated entity must assess the information security capability of that party.  Data that is managed by a third party may be distinguished from data that is held by a third party.  Upon receipt of the data Maurice Blackburn would not be managing it on behalf of the defendants (or for that matter, holding it for the defendants).  The point can be illustrated by the fact that banks are regularly subpoenaed in legal proceedings and do not object to production on the grounds of the recipient’s information security capability.  The same thing may be said of discovery in civil proceedings.
Separately, it was submitted that customers of Westpac and Macquarie had already provided broad written authority for the production of their personal information.  The plaintiffs referred to privacy authorisation provisions in applications for credit completed by the plaintiffs in respect of the finance the subject of these proceedings.  Each document (broadly described) referred to the disclosure of information to persons “acting on behalf of” the borrower.  The defendants contested the plaintiffs’ reading of the privacy provisions in the credit applications, but said it was unnecessary for the Court to construe them.
128	Macquarie submitted that:
(a)	The key objective of CPS 234 is to minimise the likelihood and impact of information security incidents including information assets managed by third parties.  Prudential Practice Guide CPG 234 explains that cyber-attacks are increasing in frequency, sophistication and impact, and consequently stakeholders including shareholders, customers and regulators have heightened expectations for the effective safeguarding of information assets.  To achieve this objective, CPS 234 imposes a series of requirements on regulated entities.  They are necessarily expressed as principles rather than prescriptive obligations given the evolving nature of cyber security threats.
(b)	Under the plaintiffs’ proposal, Macquarie would need to duplicate part of its customer database and hand it over to an unvetted third party which would increase the chances of data leakage because the information would be stored in multiple locations.
(c)	The question whether Maurice Blackburn is a “third party” under CPS 234 is not clear cut.  However, it is unnecessary for the Court to determine the question whether the standard applies where a regulated entity is producing material under Court order.
Rather, what is relevant in this case is that for the purposes of exercising a discretion to require the production of data to facilitate group member registration and to assist group members to exercise their rights, is the public policy that CPS 234 expresses.  That policy is that information of APRA‑regulated entities, such as banks, should be secured to the greatest extent possible and should not be handed over where it is unnecessary for that to occur.  In this case, it is unnecessary because there is an adequate, appropriately targeted mechanism for the information to be provided to Maurice Blackburn that it needs to answer group member enquiries.  It was not submitted that the outcome of this application should be dictated by the need to give effect to that policy (and it was not submitted that the Court lacked power to require production unless satisfied that the objectives of CPS 234 could be met).  Rather, it was submitted that the public policy expressed in the standard could, and should, inform the exercise of the discretion.
(d)	Macquarie submitted that there was a vast difference between a subpoena seeking a particular document or documents and the provision of a customer database which would be much more apt to attract a cyber-attack.  The same may be said of discovery.
129	Westpac submitted:
(a)	In the event that the Court considers that data ought be produced, the unique database option is feasible and the most appropriate course to adopt, for the reasons set out above.
(b)	Westpac maintained its objection to the direct transfer to Maurice Blackburn of personal and financial customer data held by it in relation to all 428,000 potential group members.  If the direct transfer was ordered once customer data had been provided to Maurice Blackburn, Westpac would not be able to test and audit Maurice Blackburn’s information security controls in place in relation to the customer data.  Westpac considers that customer data is an information asset for the purposes of CPS 234 such that the defendants are obliged to have information security controls in place in relation to that data, and to access, test and audit the information security controls of third parties that manage that data.  The provision of wholesale access to customer data sits incongruously with the guidance set out in CPG 234 to restrict access to the information asset to the bare minimum required to achieve the business objective.
(c)	However, the point is not really one of strict applicability of the prudential standard.  In order to determine this application it was unnecessary for the Court to construe the standard.  The spirit actuating the standards is to adopt a minimum potential harm approach whereby one avoids the wholesale handing over of data where possible.  The instant concern is data security breaches.  Risk minimisation principles that emerge from the standard, together with the current context of cyber security risks, are properly invoked in circumstances where the Court is exercising a discretion.
(d)	The plaintiffs’ application for wholesale data in this case can be contrasted with what occurs when a bank is required to respond to a subpoena which, unless set aside, requires production of documents.  Here, by contrast, the question is whether the Court should, in the exercise of discretion, order production of a significant volume of bank-customer data.
(e)	Having regard to the spirit and intention of CPS 234, the obligations it places on the defendants, the seriousness with which the APRA views those obligations and recent cyber security attacks, the Court should not order the wholesale provision of customer data to Maurice Blackburn.
130	My reasons for requiring the defendants to provide Maurice Blackburn with access to potential group-members data via unique databases, can be stated shortly.
131	First, as set out earlier in these Reasons, I have concluded that it is appropriate that Maurice Blackburn have sufficient access to data to assist group members exercise their rights in respect of registration and opting out.  I accept Mr Watson’s evidence that without access to group-member specific data it would be exceedingly difficult to assist those group members who seek assistance and empowering the plaintiffs’ representatives in this way is important in facilitating the effective exercise by group members of their rights in this context in these proceedings.
132	Second, the plaintiffs accept that provision of data via a database will allow them to assist group member in the fashion discussed.  Despite their efficiency concerns, they expressly did not submit that they would be impeded in assisting group members by having access to data through separate databases for each proceeding.  The plaintiffs’ efficiency concerns were very generally expressed and did not articulate any specific detriment that would flow from the use of databases.
133	Third, on this application I was not in a position to make an assessment as to whether the defendants might have taken different steps to become satisfied that they could meet the prudential data-security standards vis-à-vis production to Maurice Blackburn.  The material before me consisted of competing statements – by the plaintiffs on the one hand (that their solicitors had robust data-security measures in place and could take further steps if asked) and the defendants on the other (that they were not in a position to reach a state of satisfaction for themselves on those issues). Sensibly, the parties did not seek to have any factual question about data arrangements determined on this application.  However, on the material before me I consider that the defendants’ concerns about the direct production of data were not raised in an attempt to avoid production.  To be clear, nothing in these Reasons should be taken to express a view that Maurice Blackburn does not have in place robust data‑management systems.  That was not the defendants’ case. Their concern was their ability to assess those systems for themselves which I take to mean, to conduct all necessary assessments in the time available.
134	Fourth, I accept that in the exercise of discretion, the public policy values expressed in CPS 234 are a relevant consideration in this case.  While those values do not and could not of themselves dictate how the discretion should be exercised, the public policy expressed in the standard informs the exercise of the discretion because it identifies a value (data security and the minimisation of risk to data security) that has been engaged on the evidence, the protection of which can accordingly be weighed in the balance of competing interests.
135	Although there were suggestions in each of the defendants’ submissions that the direct production of data under a court order might conflict with the defendants’ obligations under CPS 234 (because they had not been able at this point to validate the data‑security measures that would be in place once the data was produced) both ultimately submitted that it was unnecessary for the Court to parse the standard in order to determine its relationship with the Court’s powers to require production of material for the purposes of a proceeding.  In this case, there was a sensible and pragmatic course that would meet the needs of all concerned.  In contrast, the only reason given by Maurice Blackburn for resisting that proposal was that the wholesale production of group member data was preferable “in the interest of simplicity and efficiency”. I consider that there is force in the plaintiffs’ submission that CPS 234 is not concerned with the regulation of the production and receipt of data between parties to litigation, but I need not decide that question.  It is also unnecessary to address the plaintiffs’ contention about the provision of consent by the banks’ customers for the provision of data to persons acting on their behalf.  The Overarching Purpose would not be served by deciding points that are unnecessary to resolve the dispute, which could take this proceeding off course into satellite litigation, as it were.
136	In circumstances where there is a practicable solution (specifically meaning that it meets the plaintiffs’ objectives and satisfies the defendants’ security concerns), I can see no reason to go further.  Different facts may have produced a different analysis and outcome.  It is appropriate to adopt a less is more solution in this case.
137	As I made clear to the defendants in the course of argument, production of data as ordered, is not to be taken as a substitute for the separate provision of data to the plaintiffs tailored to the calculation of losses in a way that will facilitate mediation.  That question will require separate consideration. 
138	The defendants will each meet the costs of producing the databases in their proceeding.  Each agreed to do so. 
Part D – notification regime
139	It was agreed, between parties of all proceedings, that personal notice should be given. The form and content of the notice is not in dispute and has been settled by the Court.
140	There was no dispute that group members be notified by email at first instance.  Westpac proposed the use of third party distribution agent, Link Market Services Limited, to notify all potential group members for whom it holds email addresses.  There was no real opposition to that proposal, although Maurice Blackburn submitted that it has all necessary facilities to conduct the notification itself.  Macquarie and ANZ, separately, proposed to engage Computershare Communication Services Pty Limited. 
141	However, the parties did not agree on the means by which the notice should be distributed to group members in circumstances where email was not available.
142	Where no email address was available or email delivery was unsuccessful, the plaintiffs proposed that the group member would be contacted by SMS which they submitted is a direct form of communication and relatively inexpensive.  The email‑then‑text method was used successfully to contact group members in Shimshon v MLC Nominees, and the plaintiffs proposed that a similar form of SMS notice be adopted in these proceedings.  The SMS would not appear to have been received from a bank. A group member will not be asked to provide their banking passwords or login details.
143	The defendants proposed that, in those circumstances, the group member should be contacted by post.  Westpac submitted that there is a perception amongst consumers of a heightened risk associated with unsolicited SMS messages.  The defendants’ customers have been educated on the risk of receiving SMS scams purporting to be official communication from their bank.  The banks’ customers may not pay attention to a notice received by SMS.  It was ANZ’s evidence that the bank contacted its customers via SMS only in limited circumstances.
144	The plaintiffs submitted that the defendants were drawing an artificial distinction between the prospect of an SMS, as opposed to an email, being considered by its recipient to be a “scam”, given that the concern should apply equally to distribution via email.  They submitted that the use of postal distribution in place of SMS is likely to incur significant expense.
145	At my direction, the defendants produced further information concerning the contact details for group members held by each bank.
146	Westpac has identified 428,378 potential group members within their customer base.  For 131,804 of those group members, Westpac has an email address.  For 287,546 of those group members, Westpac holds a mobile phone number but no email address.  9,013 group members have no recorded email or mobile phone number but there is a postal address on file.  There are 15 group members who have no recorded form of contact.
147	ANZ has identified 373,200 potential group members.  There is a form of contact for every group member.  ANZ holds the email addresses of 186,140 of those group members.  For 130,330 of those group members, ANZ holds a mobile phone number but no email address.  56,730 group members have no recorded email or mobile phone number but there is a postal address on file.
148	Macquarie has identified 193,900 potential group members.  There is a form of contact for every group member.  For 165,169 of those group members, Macquarie has an email address.  For 27,992 of those group members Macquarie holds a mobile phone number but no email address.  739 group members have no recorded email or mobile phone number but there is a postal address on file.
149	There are significant numbers of group members across each proceeding for whom the defendants do not hold an email address on file.  There is the possibility of delivery failure or “bounce‑back”.  The plaintiffs submitted that many of the contact details held by the defendants were historical and may no longer be accurate for each group member.  The plaintiffs cautioned that some group members may be “shut out” as a result.
150	It follows that if personal notice is to be given, distribution must involve a number of channels.  Those channels should comprise email in the first instance, followed by SMS for group members for whom there is no email address, followed by post, for those group members for whom there is no email or SMS address held.  Where a “bounce‑back” notification is received, indicating that the email or SMS address is not valid, the notice is to be distributed by post.  I consider the use of SMS to be appropriate.  I accept that banks warn their customers about inauthentic communications, particularly those received by text.  The text message to be sent in this case will not appear to come from a bank.  It will direct recipients to the Supreme Court’s website.  It will not contain a hyperlink.
151	I accept that for 15 group members in the ANZ proceeding (representing 0.00402% of the total class) no address is held.  I also accept that in some cases the contact details held by the banks may be obsolete.  I note that that situation would apply regardless of whether group members were required to register their interests in the proceeding now, or at a later date.  I propose to require newspaper advertising, once in the major daily newspapers nominated by the parties.  Furthermore, if any group member can demonstrate that they have not registered and have been prejudicially affected by this regime they may make application to be re-admitted to the proceeding.
152	At my direction, each of the defendants made enquiries with their proposed mailing houses for the total cost of distribution via email at first instance followed by SMS or post to group members for which no email address is held.
153	Westpac provided a total estimate of $178,731 inclusive of GST, to include:
(a)	$5,352 in set up costs;
(b)	$9,043 for distribution by email to 131,804 group members;
(c)	$116,739 for distribution by SMS to 287,546 group members;
(d)	$30,849 for distribution by post to 9,013 group members; and
(e)	$500 for reporting services.
154	ANZ provided a total estimate of $168,805 inclusive of GST, to include:
(a)	$35,400 in implementation costs;
(b)	$5,585 for distribution by email to 186,140 group members;
(c)	$13,030 for distribution by SMS to 130,330 group members; and
(d)	$99,440 for distribution by post to 56,730 group members.
155	Macquarie provided a total estimate of $66,207.74 inclusive of GST, to include:
(a)	$50,154.50 in production and implementation costs;
(b)	$10,901.15 for distribution by email to 165,169 group members;
(c)	$3,079.12 for distribution by SMS to 27,992 group members; and
(d)	$2,072.97 for distribution by post to 739 group members.
156	The parties provided preliminary estimates of newspaper advertising costs, ranging between about $47,000 and $56,000 for one-day advertisements to be placed in each nominated national and state-wide newspaper.
157	Although the complete notification package as it were, is comprehensive and involves multiple media, I consider that the expense that it entails is justified by the class size and the fact that the notification concerns very significant information for group members.  As set out earlier, multiple media for personal communications are to be employed only because contact information is held in different forms, and where bounce‑backs occur.  For the purposes of s 33Y(4), I consider that the costs of personal notification is both reasonably practicable and not unduly expensive in the circumstances.
Costs of the notification regime
158	The plaintiffs submitted that costs of implementing the notification regime should be borne equally at first instance but ultimately become costs in the proceeding.  It was submitted that costs should be shared in circumstances where an opt out and registration notification regime benefits both parties and in particular, where it is the defendants who are seeking class closure.
159	The defendants submitted that the plaintiffs should pay the costs of distribution in the first instance.  They relied upon a general rule espoused by Gillard J in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd.  There, his Honour was concerned with the giving of notice to group members at the commencement of the proceeding and the right of group members to opt out, under s 33X of the Act.  Section 33X stipulates the matters of which notice must be given (including notice of the right to opt out) and also (by ss 33X(5)) that the Court may, at any stage, order that notice of any matter be given to group members.  Section 33Y provides as follows:
(1)	The form and content of a notice under section 33X must be approved by the Court.
(2)	The Court must, by order, specify—
(a)	who is to give the notice; and
(b)	the manner in which the notice is to be given—
and the order may include provision—
(c)	directing a party to provide information relevant to the giving of the notice; and
(d)	relating to the costs of notice.
…
160	As Gillard J said in Johnson Tiles, the Court clearly has power to order that the costs of giving notice be paid by all or any of the parties, and that the discretion given to the Court is an unfettered one.
161	His Honour’s reasoning in that case was in short, that as a general rule, when a litigant issues proceedings in any Court, the litigant has the carriage of the proceeding and is obliged to pay all fees and expenses incurred in relation to that litigation, until an order is made requiring a party to pay any costs.  The costs of giving notice fell within that general rule, from which there was no reason to depart.  The plaintiffs had submitted that defendants should pay all or part of the notification costs.  Among other reasons, they said that the defendants should share the cost because they would gain some benefit from the fact that a group proceeding had been issued, because all members would be bound by common questions of law and fact (implicitly, including those determinations in favour of the defendant).  His Honour said, of that submission, that defendants do gain some benefit from a group proceeding, but nevertheless, the reality is that the plaintiffs bring the proceeding.  His Honour distinguished between the proceeding and an arbitration or mediation, where both parties have equal interests in seeking an alternative dispute resolution procedure.
162	In my view, the notification costs should in each case be shared equally between the plaintiffs for the one part and the defendants for the other.
163	I accept that, as Gillard J said, a party who initiates litigation ordinarily bears its expenses in the first instance, absent a contrary order.  However, it must be recalled that there is a specific and unfettered discretion in respect of the costs of notification, conferred by s 33Y.  It might in many cases be appropriate to exercise that discretion in keeping with that “general rule”.
164	In this case, notification is to be given not only of the right of group members to opt out of the proceedings, but also of the requirement for group members to register an interest in the proceedings, in order for them to retain their right to participate in any compensation agreed in consequence of the forthcoming mediations.  Class closure (an order under ss 33ZF and 33ZG) is a discretionary step that has been sought by the defendants.  It is obviously not a step that could be properly taken without advising group members of how it will affect their rights and what they may do in response to the Court’s orders.  The notification regime I will order is extensive, but for the reasons given, is appropriate in circumstances in which group members’ interests are to be affected by the orders, in that way.
165	For the reasons set out earlier at some length, the class closure orders will be made for the purposes of assisting the parties to mediate effectively.  Such a step will be to the benefit of both sides.  In deciding whether to make class closure orders I have concentrated upon the interests of group members.  But an effective mediation process is also in the interests of the defendants.  So much is apparent from the submissions made by the defendants in support of their applications for class closure.  The notification then, is an expense of the proceeding, but it is in respect of a step that will be to the benefit of both parties in each case.  In those circumstances, it is fair that both sides share the costs of notification.

SCHEDULE OF PARTIES

	S ECI 2020 02946	
		
BETWEEN:		

Alannah Fox	First Plaintiff 	
		
Bridget Nastasi	Second Plaintiff	
		
- and -		
		
Westpac Banking Corporation (ACN 007 457 141)	First Defendant	
		
St George Finance Limited (ACN 001 094 471)	Second Defendant 	

		
	S ECI 2020 03365	
		
BETWEEN:		

Daniel Christian O’Brien	Plaintiff 	
		
- and -		
		
Australia and New Zealand Banking Group Limited (ACN 005 357 522)	First Defendant	
		
Macquarie Bank Limited (ACN 008 583 542)	Second Defendant 	

		
	S ECI 2020 03924	
		
BETWEEN:		

Daimin Nathan	First Plaintiff 	
		
Tania Nathan	Second Plaintiff	
		
- and -		
		
Macquarie Leasing Pty Ltd (ACN 002 674 982)	Defendant	

ANNEXURE
In the Fox v Westpac proceeding, the Court orders that:
UNIQUE DATABASE OF GROUP MEMBER DATA
1.	The defendants create a secure database using RelativityOne containing the potential group member information in Annexure A (Unique Database). 
2.	Access to the Unique Database is to be provided in accordance with the access protocol in Annexure B. 
3.	Westpac is to bear the costs of the Unique Database in the first instance, with such costs to be costs in the cause.
Annexure A
Potential Group Member Information to be included in the Unique Database 
(to the extent it is held by the defendants for each potential group member)
4.	First name.
5.	Surname.
6.	Email address (limited to first four characters with all other characters before the domain (i.e. “@”) replaced with an asterix (i.e. “*”). for example: the email address marysmithexample@email.com would be extracted as mary************@email.com).
7.	Mobile phone number (the last four digits to be included with all other digits replaced with an asterix “*”, for example the mobile 0400 123 456 would be extracted as **** **3 456).
8.	Postcode.
9.	Contract number of car loan.
10.	Car make (of car to which the car loan related).
11.	Car model.
12.	Car variant.
13.	Car year of manufacture.
14.	Car registration number plate.
15.	Car loan contract start date.
16.	Net amount financed.
17.	Car loan contract interest rate.
18.	Term of the car loan.
19.	Total interest anticipated to be paid under the car loan.
20.	The date on which the car loan ended or was terminated. 
21.	Base rate of interest in effect with the relevant dealership at the time of the car loan. 
Annexure B
Unique Database Access Protocol 
1.	This protocol relates to representative proceedings number S ECI 2020 02946.
2.	The defendants will create a secure database using RelativityOne containing the potential group member information in Annexure A (Information) to these orders (Unique Database). 
Authorised Access 
3.	To ensure information security, access to the Unique Database is to be limited to Maurice Blackburn’s nominated employees.
4.	Maurice Blackburn must nominate, by notice in writing to the defendants’ solicitors, its employees who are to access the Unique Database (Nominated Person).  Maurice Blackburn may nominate up to fifteen Nominated Persons.  Permission for additional Nominated Persons can be agreed, in writing, between the parties. 
5.	Maurice Blackburn are to provide the following information in relation to each Nominated Person so that a unique login can be created: 
a.	Full name;
b.	Email address;
c.	Mobile number; and 
d.	“trusted IP address”.  
6.	Nominated Persons must provide a written acknowledgement (by email) of the following terms and conditions of access to the Unique Database: 
I agree to access and use the Unique Database only for the purpose of assisting potential group members seeking information or making enquiries about registering as a group member in the proceeding'.  I will keep my username and password confidential and secure and will take reasonable steps to prevent the unauthorised use of my username and password. 
7.	On receipt of the information in [5] above and the acknowledgement in [6] above, the defendants are to grant access and create login details for the Unique Database for each Nominated Person.  The defendants are to provide or cause the third party database provider to provide the unique login details directly to the relevant Nominated Person. 
8.	Nominated Persons must give the following undertaking on each occasion they access the Unique Database, by selecting “Accept” on an automated prompt: 
I have obtained the consent of the potential group member to access their personal information and I will only conduct searches at the request of a potential group member seeking information relating to their car loan/loans with the defendants. I agree to identify the potential group member using the knowledge-based identification methodology.  
9.	Nominated Persons may then search for either of the two combinations of potential group member information as follows: 
a.	First name and date of birth (in the form MM/YYYY); or
b.	Surname and date of birth (in the form MM/YYYY). 
10.	Once a loan or loans has been identified in accordance with the preceding paragraph, a potential group member must answer the two following questions correctly, before the Nominated Person can share any information in the Unique Database with the potential group member (knowledge-based identification methodology):  
a.	First name or surname (whichever was not used in the initial search); and
b.	The brand of the vehicle purchased with their car loan; 
11.	Once a potential group member has been identified using the knowledge-based identification methodology, the information stored in the Unique Database relating to that potential group member’s car loan or car loans may be shared with the potential group member. 
12.	Other than the following three fields, potential group member information is to be stored in the Unique Database in non‑text searchable images: 
a.	First name; 
b.	Surname; and 
c.	Date of birth (in the form MM/YYYY). 
13.	The Unique Database will be configured such that neither the defendants nor the solicitors for the defendants will be able to access or be provided with history logs or any other data recording the searches conducted or records accessed by Maurice Blackburn.
14.	Order 13 does not prevent: 
a.	KPMG (the operator of RelativityOne) from accessing all history logs in respect of the searches conducted or records accessed within the Unique Database including for the purpose of ensuring information security in respect of customer data within the database; 
b.	KPMG from informing the defendants on an anonymised basis of information (including search and access metadata) which may suggest that the Unique Database has been, or could be, the subject of unauthorised access or suspected data breach; and 
c.	KPMG from immediately providing the defendants with all relevant data pertaining to a data breach, if any data in the Unique Database is subject to a data breach or KPMG reasonably believes such a data breach has occurred, including:
i.	the records which may have been compromised and associated history logs;
ii.	the identities of the relevant customers, including to allow the defendants to inform those customers of the data breach; 
iii.	the data which may have been compromised in respect of each customer;
iv.	access, login and IP information relating to the data breach;
v.	any other information which the defendants reasonably require in order to comply with their legal and regulatory obligations or their information security policies and procedures relating to data breaches or to otherwise respond to the data breach.
In the Nathan v Macquarie proceeding, the Court orders that:
UNIQUE DATABASE OF GROUP MEMBER DATA
1.	Within 2 weeks after the date of these orders, the defendant shall: 
a.	instruct Computershare Communication Services Pty Limited (Computershare) to create a database containing the information outlined in order 1(b) (Database); and 
b.	provide to Computershare the following information in relation to any persons known to the defendant who meet the definition of a group member as set out at paragraph 1 of the Statement of Claim dated 17 February 2022 (Potential Group Members) and to the extent available for each Potential Group Member: 
i.	the names and last known contact details, including the email addresses and mobile numbers;  
ii.	the date of birth; 
iii.	the car loan contract number; 
iv.	the car to which the loan relates; 
v.	the date on which the car loan was entered into; 
vi.	the amount financed; 
vii.	the interest rate of the car loan; 
viii.	the term of the car loan; 
ix.	the amount of interest payable in respect of the loan; and
x.	the base rate applicable to the car loan, 
(together, the Potential Group Member Data).
2.	Access to the Unique Database is to be provided in accordance with the Unique Database Access Protocol set out in Annexure A to this order. 
3.	The defendant shall bear the costs of the Database in the first instance, with such costs to be costs in the cause.  
4.	Liberty to apply on 3 days’ notice.
Annexure A
Unique Database Access Protocol
Nathan v Macquarie Leasing, S ECI 2020 03924
1.	This protocol relates to representative proceedings number S ECI 2020 03924.
2.	The defendant will create a secure database using Computershare containing the potential group member information in Order 1(b) (Information) to these orders (Unique Database).
Authorised Access
5.	To ensure information security, access to the Unique Database is to be limited to Maurice Blackburn’s nominated employees.
6.	Maurice Blackburn must nominate, by notice in writing to the defendants’ solicitors, its employees who are to access the Unique Database (Nominated Person). Maurice Blackburn may nominate up to 15 Nominated Persons.  Permission for additional Nominated Persons can be agreed, in writing, between the parties.
7.	Maurice Blackburn are to provide the following information to the defendant in relation to each Nominated Person including so that a unique login can be created:
a.	Full name;
b.	Email address;
c.	Mobile number; and
d.	“trusted IP address”. 
8.	Nominated Persons must provide a written acknowledgement (by email) of the following terms and conditions of access to the Unique Database:
I agree to access and use the Unique Database only for the purpose of assisting potential group members seeking information or making enquiries about registering as a group member in the proceeding. I will keep my username and password confidential and secure and will take reasonable steps to prevent the unauthorised use of my username and password.
9.	On receipt of the information in [5] above and the acknowledgement in [6] above, the defendant is to grant access and create login details for the Unique Database for each Nominated Person. The defendant is to provide or cause Computershare to provide the unique login details directly to the relevant Nominated Person.
10.	By logging-in, Nominated Persons accept the following terms and conditions in order to use the Unique Database:
I have obtained the consent of the potential group member to access their personal information and I will only conduct searches at the request of potential group member seeking information relating to their car loan/loans with the defendant. I agree to identify the potential group member using the knowledge-based identification methodology.
11.	Nominated Persons may then search for either of the two combinations of potential group member information as follows:
a.	first name and date of birth (in the form MM/YYYY); or
b.	surname and date of birth (in the form MM/YYYY).
12.	Once a loan or loans has been identified in accordance with the preceding paragraph, a potential group member must answer the following two questions correctly, before the Nominated Person can share any information in the Unique Database with the potential group member (knowledge-based identification methodology):
a.	first name or surname (whichever was not used in the initial search); and
b.	the brand of car to which the car loan related.
13.	Once a potential group member has been identified using the knowledge-based identification methodology, the information stored in the Unique Database relating to that potential group member’s car loan or car loans may be shared with the potential group member.
14.	The defendant is not permitted to obtain information from Computershare about the use of the Unique Database unless Computershare forms the view that a cybersecurity incident has occurred or may occur in respect of the Unique Database.