On Monday 4 February 2019, the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry release its final report containing 76 Recommendations. At 4:20pm, Treasurer Josh Frydenberg held a press conference announcing that the Government had agreed to adopt 75 of the 76 recommendations made by the royal commission, opting against fully implementing a suggested crackdown on mortgage brokers.
The most important recommendation for our clients is 7.1 – compensation scheme of last resort. The Government has agreed to this recommendation by stating:
“For the first time the Government will establish a compensation scheme of last resort to ensure that consumers can have their case heard and be confident that where compensation is owed it will be paid. This will be a scheme paid for by industry reflecting their obligation to right their wrongs.”
The Federal Court has clarified the scope of the releases that may be agreed by a lead applicant in a class action. It has stated very clearly that under the legislation governing class actions, the release can only relate to the claim the class action. The lead application has no power to grant a release in relation to things beyond the claim in the class action.
The issue arose in Dillon v RBS Group (Australia) Pty Limited (No 2)  FCA 395. Mrs Dillon sued RBS Group in relation to losses sustained by her and others in relation to exotic financial products known as ‘instalment warrants’. The case settled and as is typical in cases of this kind, RBS Group required each group member to sign a lengthy document containing, among other things, a release of RBS from any further liability by all group members in relation to issues raised in the proceedings.
The necessity of requiring group members to sign such a document prompted Lee J to consider the “important points of principle” about the scope of the proposed releases. It is an important point because defendants often ask for a release of all liability, whether or not connected with the issues in the case. A release of all liability would preclude group members from pursuing other claims they might have against a particular defendant. Lee J held that a release that went beyond the claim in the class action could not be maintained.
This decision has significant consequences. In the Great Southern litigation, a release was contained in the Deed of Settlement that clearly went beyond the scope of the class action. Bendigo and Adelaide Bank, in the course of its recovery action, has relied on that release to assert that borrowers have no defences to the bank’s demands for payment.
Lee J’s decision makes it plain that this is not correct and that the scope of any release must be construed in line with the content of the claim in the class action.
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