On 18 October 2012, Bromberg J declined to grant orders sought by the respondents in two class action proceedings (Pfizer Australia Pty Ltd (Pfizer) and Aspen Pharmacare Australia Pty Ltd/Eli Lilly Australia Pty Ltd (Aspen and Lilly)) for class closure in their respective proceedings.
Specifically, the respondents sought orders:
- requiring the group members who had not opted out of the proceedings to register with the solicitors for the applicants; and
- that those group members who failed to register by a certain date would be bound by any judgment in the proceedings, but would not be entitled to share in the benefit of any settlement or judgment in favour of the applicant or group members, and would be barred from making any claim against the respondent in respect of or relating to the subject matter of the proceedings (a class closure and extinguishment order).
At the time the orders were sought, Bromberg J noted that:
- as regards the class action against Aspen/Lilly, pleadings had not yet closed, common questions were yet to be settled, opt-out notices were about to be advertised and no settlement discussions had been undertaken; and
- as regards the class action against Pfizer, settlement discussions had commenced and a sampling process had begun to assess the claims of some individual group members. His Honour vacated the hearing date (scheduled for August 2013) on this basis.
While Bromberg J was satisfied that the Court had the power to make orders of the kind sought by the respondents, his Honour held that no compelling reason had been demonstrated by the respondents to require the group members to take a positive step in order to close the class (for example, there was no demonstrated need to bring the proceedings to finality given the current status of the two class actions). Bromberg J did, however, make orders requiring the publication of notices to encourage group members to register with the applicants’ solicitors, but not with threat of sanction. His Honour also indicated that he might be prepared to revisit a class closure application once any settlement discussion was more advanced.