Brambles Class Action

You are a group member if (subject to some limited exceptions) you:

1. entered into a contract to acquire an interest in fully paid ordinary shares in Brambles during the period between 18 August 2016 and 17 February 2017 (inclusive); and
2. suffered loss or damage by reason of the conduct of Brambles, as alleged in the Applicants’ amended statement of claim (and which is summarised above under the heading ‘What is the Brambles class action about?’)

A class action is a proceeding that is brought by one or more persons (the applicant/s) on their own behalf and on behalf of a group of people (group members) against another person or persons (respondent/s) where the applicant/s and the group members have similar claims against the respondent/s.

Group members are bound by the outcome in the class action, unless they have opted out of the action. 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 group members will not be able to pursue the same claims and may not be able to pursue similar or related claims against the respondent in other legal proceedings:

1. in a judgment following trial, the Court will decide various factual and legal issues in respect of the claims made by the applicant and group members. Unless those decisions are successfully appealed they bind the applicant, group members and the respondent. Importantly, if there is another legal action between a group member and the respondent, it may be that neither of them will be permitted to raise arguments in that action which are inconsistent with a factual or legal issue decided in the class action;
2. in a settlement of a class action, where the settlement provides for compensation to group members it is likely to extinguish all rights to compensation which a group 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 and may also extinguish all rights to compensation which a group member might have against the respondent’s related entities (including officers and former officers);
3. class actions are supervised and monitored by the Court. Importantly, if any proposed settlement is reached in the Brambles Class Action, it will be scrutinised by, and require the approval of, the Court.

The Applicant in a class action does not need to seek the consent of group members to commence a class action on their behalf or to identify a specific group member. However, group members can cease to be group members by “opting out” of the class action.

If you consider that you have claims against Brambles which are based on your individual circumstances or otherwise additional to the claims described in the Brambles 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.

The class action is being run on a no win - no pay basis, with all costs fully underwritten by Omni Bridgeway and Harbour. You will not become liable for any legal costs simply by remaining a group member or by registering your claim. You will not be required to pay any upfront or out-of-pocket costs in relation to the class action as it progresses in relation to common issues.

In other words, costs are only payable by group members if, and only in the event, a successful outcome is achieved either at settlement or by judgment. However:

1. 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 Maurice Blackburn Lawyers, Slater and Gordon Lawyers or other lawyers to do that work for you. A copy of the terms on which Maurice Blackburn Lawyers and Slater and Gordon Lawyers are acting in this class action may be obtained from them using the contact details set out in section 4 above;
2. if you become entitled to any compensation following a judgment or settlement in the Brambles Class Action, the Court may make an order requiring you to pay some of that amount by way of a contribution to the costs incurred by the Applicants in running the class action, but which they are not able to recover from Brambles. Any such amounts will only be payable in the event of a successful outcome by way of a deduction from any compensation to which you become entitled, and will never exceed the amount of compensation to which you may otherwise become entitled. The Court will assess whether any amounts proposed to be deducted are fair and reasonable. You will be given a notice at that time informing you of the amount which it is proposed to be deducted and given an opportunity to tell the Court if you agree or disagree with what is proposed.

The Brambles Class Action is being jointly funded by two litigation funders – Harbour and Omni Bridgeway. This means that Harbour and Omni Bridgeway have agreed to pay the costs of the class action as it progresses in relation to the common issues. If the class action is unsuccessful, Harbour and Omni Bridgeway have also agreed to meet any order that the Applicants pay Brambles’ costs.

In return for funding the class action, Harbour and Omni Bridgeway charge litigation funding fees based on a percentage of the amount recovered in the class action. This means that if you have entered into a Funding Agreement with Harbour or Omni Bridgeway you have agreed to pay a funding commission to Harbour or Omni Bridgeway from any compensation you receive.

On 8 May 2019, the Court made what is known as a ‘common fund order’, which required each group member who receives compensation in the Brambles Class Action, regardless of whether that group member has entered into a funding agreement with Harbour or Omni Bridgeway, to pay to the funders a percentage of any compensation to which the group member becomes entitled as commission for funding the proceeding. The percentage funding commission under the common fund order was not set, but was to be determined by the Court following the conclusion of the class action in an amount the Court considers to be reasonable.

After the common fund order was made in the Brambles Class Action, the High Court of Australia handed down a decision in another class action, which held that the Court does not have power to make a common fund order at least at an early stage of a class action. The common fund order originally made in this proceeding has now been vacated by the Federal Court. The High Court did not consider whether a common fund order could be made towards the end of a class action, and the Federal Court of Australia has since made orders of this kind in other class actions at the end of proceedings where settlements have been reached. As such, the common fund order that was previously made in the Brambles Class Action has now been set aside. Nevertheless, the funders intend to continue to fund the proceeding in a way which is consistent with what the common fund order envisaged, and at the end of the proceeding, the Applicants intend to ask the Court to make a common fund order to approve a distribution of any money recovered by settlement or judgment on terms that the litigation funders be paid an amount the Court considers to be reasonable for funding the proceeding.

The court may either choose to take this course, or alternatively, make a funding equalisation order. Under a funding equalisation order, only group members who have entered funding agreements with Harbour or Omni Bridgeway are liable to pay these funders. The court would then adjust the distributions received by members so that the net amount received by members who have paid a litigation funding commission and those who have not are equal. The return to group members may differ depending on which course the court takes.

If the court chooses to make a common fund order, before any amounts are deducted, you will be given a notice informing you of the amount which it is proposed to be deducted and given an opportunity to tell the Court if you agree or disagree with what is proposed.

The total of any amounts deducted from compensation payable to group members for legal costs and funders’ commission will never exceed the amount a group member receives in the event of a successful outcome. That is, you will never be out of pocket by participating in the class action.