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Concerns flagged during Westpac class action finalisation

Several issues were identified during the finalisation of Westpac’s $29 million class action settlement, including late registrants with administrative concerns and a “controversial” holdback sum.

user iconNaomi Neilson 22 June 2023 Big Law
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Federal Court Justice Michael O’Bryan is preparing to make final orders in chambers that would conclude Slater & Gordon’s class action against Westpac after the parties reached a settlement that leaves the registrants with almost $20 million.

The class action alleged Westpac customers were sold consumer credit insurance when taking out credit cards and personal loans that many were ineligible or unlikely to claim on because they were already unemployed or had pre-existing health conditions or disabilities when they took out the insurance.

It was also alleged that some customer may not have provided their consent to purchase the policies with Westpac Life Insurance or Westpac General Insurance, were not informed that the insurance was optional or were not informed that they would be charged for it.


During Wednesday’s (21 June) hearing, the class action’s representation, Dr Oren Bigos, flagged that several issues remained up in the air, including the holdback sum that he said has “generated controversy in submissions”. Westpac has opposed this order.

Dr Bigos said the fee of managing the holdback sum would “exceed the sum itself”, estimated to be about $50,000 of the $29.5 million.

The sum was designed to “cater” to group members who may be disabled, sick, unemployed or deemed to be “vulnerable”.

Justice O’Bryan said the concern around the cost of maintaining this holdback sum was “the question very much on my mind” and ultimately found that it was not appropriate in this class action.

“Justice can never be perfect, and the cost of doing perfect justice just outweighs the benefit of it,” Justice O’Bryan said.

Another concern the court was asked to consider concerned four late registrants who were unable to join before the 21 April 2023 cut-off.

Dr Bigos explained two members had not registered but had contacted Slater & Gordon for assistance and told the court they were unable to reach an operator before this deadline.

A third said they incorrectly contacted Slater & Gordon about the ANZ proceeding, having assumed this was the same one.

Another potential registrant who appeared in court on Wednesday told Justice O’Bryan he signed up to the class action on Slater & Gordon’s website but was also directed to sign up with Deloitte.

The man said he incorrectly signed up for the ANZ class action instead and had asked Slater & Gordon to amend this for him. He learnt this did not happen when he was notified via email that he would receive nothing as part of the settlement.

“It was really a bit confusing for me,” he told the court.

Justice O’Bryan acknowledged it was likely an “administrative error” and thanked the man for “raising the matter with the court”.

The court was also informed the settlement amount included a $250,000 fee to cover after-the-event insurance costs.

Justice O’Bryan flagged that this would be approved because this fee was disclosed during the costs agreement stage.

The settlement, negotiated on behalf of customers who invested between 2007 and 2019, was reached on a “no admissions basis”.

In a statement in December last year, Slater & Gordon said tens of thousands of Australians were entitled to compensation.

“This result would not be possible without a class actions regime that allows one person to represent the interests of thousands of others like them who might not even be aware of their legal rights,” Slater & Gordon special counsel Nathan Rapoport said.