Sample Opt Out Notice
Below is a sample form of Opt Out Notice (Schedule A and Schedule B).
For further information about preparing an Opt Out Notice see Part 11 of the Class Actions Practice Note (GPN-CA).
OPT OUT NOTICE
FEDERAL COURT OF AUSTRALIA
[GENERIC NAME OF CLASS ACTION] [(File Number)]
1. Why is this notice important?
A class action has been commenced in the Federal Court of Australia by [insert Applicant's name here] against [insert respondent's name here]. The action arises out of [insert simple summary of the origin and general nature of the claim].
The Federal Court has ordered that this notice be published for the information of persons who might be members of the class on whose behalf the action is brought and may be affected by the action. You have been identified as a potential class member [delete where appropriate]. You should read this notice carefully. Any questions you have concerning the matters contained in this notice should not be directed to the Court. If there is anything in it that you do not understand, you should seek legal advice.
2. What is a class action?
A class action is an action that is brought by one person ("Applicant") on his or her own behalf and on behalf of a class of people ("class members") against another person ("Respondent") where the Applicant and the class members have similar claims against the Respondent.
Class members in a class action are not individually responsible for the legal costs associated with bringing the class action. In a class action, only the Applicant is responsible for the costs.
Class members are "bound" by the outcome in the class action, unless they have opted out of the proceeding. A binding result can happen in two ways being either a judgment following a trial, or a settlement at any time. If there is a judgment or a settlement of a class action class members will not be able pursue the same claims and may not be able to pursue similar or related claims against the respondent in other legal proceedings. Class members should note that:
(a) in a judgment following trial, the Court will decide various factual and legal issues in respect of the claims made by the applicant and class members. Unless those decisions are successfully appealed they bind the applicant, class members and the respondent. Importantly, if there are other proceedings between a class member and the respondent, it [insert either: "is likely" or "may be"] that neither of them will be permitted to raise arguments in that proceeding which are inconsistent with a factual or legal issue decided in the class action.
(b) in a settlement of a class action, where the settlement provides for compensation to class members it [insert either: "is likely to" or "may"] extinguish all rights to compensation which a class member might have against the respondent which arise in any way out of the events or transactions which are the subject-matter of the class action.
If you consider that you have claims against a respondent which are based in your individual circumstances or otherwise additional to the claims described in the class action, then it is important that you seek independent legal advice about the potential binding effects of the class action before the deadline for opting out (see below).
3. What is this class action?
This class action, the [insert generic name of class action] class action is brought by the Applicant, [insert name of representative party, ie, the Applicant] on [his, her or its] own behalf and on behalf of all persons who are "class members" as defined in the proceeding.
The Applicant alleges in the statement of claim in Federal Court proceeding [title and number of proceeding] that from [date to date] [insert summary of the claim].
The respondent/s to the class action is/are [insert name of respondent/s]. The respondent/s does/do not admit the allegations and are defending the class action [if this is the case]. The respondents have claimed contribution from each other in the event that the respondent claiming contribution is found liable. [if this is the case]
4. What is 'Opt Out'?
The Applicant in a class action does not need to seek the consent of class members to commence a class action on their behalf or to identify a specific class member. However, class members can cease to be class members by opting out of the class action. An explanation of how class members are able to opt out is found below in the section headed "How can you opt out of the proceeding".
5. Are you a class member?
You are a class member if [insert identifying factors].
If you are unsure whether or not you are a class member, you should contact [Applicant's lawyers] on [telephone number] or email [email address] or seek your own legal advice without delay.
6. Will you be liable for legal costs if you remain a class member?
You will not become liable for any legal costs simply by remaining as a class member for the determination of the common questions. However:
(a) if the preparation or finalisation of your personal claim requires work to be done in relation to issues that are specific to your claim, you can engage [Applicant's lawyers] or other lawyers to do that work for you. A copy of the terms on which [Applicant's lawyers] are acting in the class action may be obtained from them on the number/s shown below;
(b) if any compensation becomes payable to you as a result of any order, judgment or settlement in the class action, the Court may make an order that some of that compensation be used to help pay a share of the costs which are incurred by the Applicant in running the class action but which are not able to be recovered from the respondents; and
(c) class actions are often settled out of court. If this occurs in the class action, you may be able to claim from the settlement amount without retaining a lawyer.
7. What will happen if you choose to remain a class member?
Unless you opt out, you will be bound by any settlement or judgment of the class action. If the class action is successful you will be entitled to share in the benefit of any order, judgment or settlement in favour of the Applicant and class members, although you may have to satisfy certain conditions before your entitlement arises. If the action is unsuccessful or is not as successful as you might have wished, you will not be able pursue the same claims and may not be able to pursue related claims against the respondent in other legal proceedings.
8. What class members need to do
(a) How you can remain a class member?
If you wish to remain a class member there is nothing you need to do at the present time. The Applicant will continue to bring the proceeding on your behalf up to the point where the Court determines those questions that are common to the claims of the Applicant and the class members. However, you are invited to contact the Applicant's lawyers, [Applicant's lawyers], on the number below and register as a class member so that future notices about the class action can be sent to your preferred address.
(b) How you can opt out of the class action?
If you do not wish to remain a class member you must opt out of the class action. If you opt out you will not be bound by or entitled to share in the benefit of any order, judgment or settlement in the class action, but you will be at liberty to bring your own claim against the respondent/s, provided that you issue Court proceedings within the time limit applicable to your claim. If you wish to bring your own claim against the respondent/s, you should seek your own legal advice about your claim and the applicable time limit prior to opting out.
If you wish to opt out of the class action you must do so by completing a "Notice of opting out by class member" in the form shown below (Form 21 of the Court's approved forms), then returning it to the Registrar of the Federal Court of Australia at the address on the form. IMPORTANT: the Notice must reach the Registrar by no later than [time and date], otherwise it will not be effective.
You should submit the Notice of opting out by class member if:
(i) you qualify as a class member and you wish to opt out of the class action; or
(ii) you believe that you have been incorrectly identified as a class member, because you do not meet the criteria set out in the section headed "Are you a class member" above.
Each class member seeking to opt out should fill out a separate form. If you are opting out on behalf of a company or business please provide your name, the name of the company or business and your position within the company or business (e.g. director or partner).
9. Where can you obtain copies of relevant documents?
Copies of relevant documents, including the application, the statement of claim, and the defence or defences, may be obtained by:
(a) downloading them from [Applicant's lawyers' website];
(b) inspecting them between 9am and 5pm at one of the offices of [Applicant's lawyers], contact details for which are available from [Applicant's lawyers' website] or by calling [telephone number];
(c) by contacting a District Registry of the Federal Court (contact details are available www.fedcourt.gov.au) and paying the appropriate inspection fee; or
(d) where appropriate arrangements have been made with the Court, inspecting them on the Federal Court website at [insert relevant web address].
Please consider the above matters carefully. If there is anything of which you are unsure, you should contact [Applicant's lawyers] on [telephone number] or email [email address] or seek your own legal advice. You should not delay in making your decision.
Opt out notice
No. of 20
Federal Court of Australia
District Registry: [State]
[Name of First Applicant] [if 2 or more add "and another" or "and others"]
[Name of First Respondent] [if 2 or more add "and another" or "and others"]
To: The Registrar
Federal Court of Australia
[State] District Registry
[Name of group member], a group member in this representative proceeding, gives notice under section 33J of the Federal Court of Australia Act 1976, that [Name of group member] is opting out of the representative proceeding.
Date: [eg 19 June 20..]
Signed by [Name]
[Insert capacity eg group member / Lawyer for the group member]
|Filed on behalf of (name & role of party)|
|Prepared by (name of person/lawyer)|
|Law firm (if applicable)|
Address for service
[Version 2 form approved 9/10/13]