Australian Retirement Group Pty Ltd v The Commonwealth Bank of Australia Ltd (No 3)

The background to this matter is set out in my earlier judgments. [1]

What presently divides the parties is the identity of the persons to whom an agreed form of opt out notice, the contents of which I have approved, should be sent.

In the Statement of Claim, "Group Members" are defined as:

Approximately six years ago, on 26 August 2016 and 9 September 2016, the following particulars were sought and provided:

The defendant, CBA, submits today that, so particularised, any persons whose files were subject only to an "annual" or "scheduled" review are not relevant and that, accordingly, it should not have to obtain from its records the names and contact details of such persons, but only persons whose files were reviewed otherwise than "annually" or as part of a "scheduled" review.

That may have been the case were the answer given by Mr Hall, the solicitor for the plaintiff, to CBA's request have been simply "no.”

However, the answer given was that the reviews in question were not done "on the basis" that they were "annual" or "scheduled" reviews of the loans in question.

In those circumstances, Mr Hall submits that this captures reviews having the characteristics complained of in the Statement of Claim, in particular being part of what is described as CBA's "Credit Risk Transformation Program"; and whether or not they were also an "annual" or a "scheduled" review.

What is at play here is the persons who should receive an opt out notice, not some final issue in the proceedings. It appears to me Mr Hall's contentions are at least arguably correct and that, to err on the side of caution, and to ensure all persons potentially affected as group members in these proceedings are notified of their opt out rights, the formulation of words that Mr Hall proposed is to be preferred.

In those circumstances, the parties have agreed on the orders that should be made today.

I will make orders in accordance with the agreed Short Minutes of Order which I have initialled and dated.

In addition to those orders, I will grant the defendant liberty to apply on short notice to a judge of the Commercial List in the event that the defendant is unable to comply with Order 4 by the date specified.

I will list the matter for directions on 24 March 2023.