For group members who wish to provide their claim
information prior to a Court-ordered mediation
1. What is this Notice?
This Notice contains important information about the class action brought against Subaru on behalf of consumers affected by the Takata airbag recall of Subaru branded vehicles (Subaru Class Action).
It is one of seven class actions against car manufacturers in Australia referred to as the “Takata Airbag Class Actions”. This Notice relates only to the Subaru Class Action.
This Notice is different from an earlier notice that you may have received regarding the right of Group Members to opt out of the Subaru Class Action.
This Notice is made available pursuant to Court orders made 24 August 2020. Subaru considers that the parties may be assisted at a mediation (and in settlement discussions generally) by information that group members can provide about their claim.
The Court has accordingly approved a voluntary Questionnaire (enclosed with this Notice) that Group Members may complete, if they wish to provide information regarding their claim now. Your rights will not be affected if you do nothing in response to this Notice, but your information may assist discussions between the parties at the mediation and increase the chances of settlement occurring.
The purpose of this Notice is to outline the ways that you may complete that Questionnaire.
You should read this notice carefully. If there is anything in this notice that you do not understand, you may direct questions to [email protected] or call 1300 476 493. Any questions you have concerning the matters contained in this notice should not be directed to the Court.
2. What is a class action?
A class action is an action that is brought by one person (the Plaintiff – in this case Mr Kimley Lloyd Whisson) on his or her behalf and on behalf of a group of people (Group Members – this may include you) against another person (the Defendant – in this case Subaru), in circumstances where the Plaintiff and Group Members have similar claims against the Defendant. The Plaintiff is represented by Quinn Emanuel.
You are considered a Group Member of a class action if you meet certain criteria (see below), and did not choose to ‘opt out’ of the class action before the opt-out deadline. A previous notice was sent to Group Members in the Subaru Class Action to notify them of their rights to opt out of the Subaru Class Action. The Opt-Out Deadline was 31 August 2020. A copy of the notice can be found here.
Group Members in a class action are not individually responsible for legal costs associated with bringing the class action insofar as it concerns the issues common to the group. In a class action, only the Plaintiff is responsible for the costs in prosecuting issues common to the group.
3. What is the Subaru Class Action about?
In summary, the Plaintiff alleges that, in importing and marketing Subaru vehicles fitted with certain Takata airbag/s in Australia, Subaru:
Subaru denies those allegations and is defending the Subaru Class Action.
If the Plaintiff proves these allegations they seek compensation for the financial losses suffered. The losses alleged to have been suffered may include:
The Subaru Class Action is not a means for you to get your recalled Takata airbags replaced. If you have an affected vehicle and the airbag has not been replaced, please read the reminder at the bottom of this Notice. Getting your airbag replaced in accordance with the recall will not affect your ability to participate in the Subaru Class Action.
The Subaru Class Action is currently set down for trial commencing on 3 May 2021. The parties have been ordered by the Court to commence mediation discussion by 15 March 2021.
You can access copies of key documents filed in connection with the Subaru Class Action on the website of the Supreme Court of New South Wales Here or by visiting the Sydney Registry of the Supreme Court of New South Wales.
4. Are you a Group Member?
You are a Group Member in the Subaru Class Action if you meet both of the following criteria:
If you sold your Subaru vehicle at any time prior to (or on) 27 February 2018 you are not a Group Member and this Notice does not relate to you.
5. Should I provide my claim information now?
The Court has ordered the parties to commence mediation by 15 March 2021. At this Court-ordered mediation, the parties will discuss the possibility of settling the Subaru Class Action.
You do not have to provide your claim information to remain a Group Member, but there are a number of reasons why you may consider doing so now:
6. If I provide my details now, and the action is successful, will I need to provide further details to obtain compensation?
If you provide details about your claim by completing the questionnaire now, you may still need to provide additional details about your claim again in the future, after any successful settlement or judgment award.
However (as explained above), if you provide details about your claim now, the parties will be able to contact you following any successful settlement or judgment to let you know of any further information required to process your claim.
7. Will completing the Questionnaire improve my position as a group member?
Providing information about your claim may assist discussions between the parties at the mediation and increase the chances of settlement occurring.
Completing the Questionnaire will not change the way your claim is assessed or the timing of that assessment.
8. I want to complete the Questionnaire. How do I do so?
If you are an eligible Group Member in the Subaru Class Action and would like to submit the Questionnaire, you may do so by:
Completing the Questionnaire is voluntary and closes on 30 November 2020. If you submit your claim information after this deadline, the parties may not be able to use your information at the mediation.
9. What is the separate Opt Out Notice?
Pursuant to Court orders, an Opt Out Notice was previously issued to Group Members to notify them of their rights to opt out of the Subaru Class Action. The Opt-Out Deadline was 31 August 2020.
10. What happens if I do nothing?
You remain a Group Member, provided you meet the criteria outlined above and you have not opted out of the Subaru Class Action. As a Group Member, you will be bound by any judgment or settlement entered into in the Subaru Class Action.
If you decide not to complete the Questionnaire, you will still be entitled to make a claim for compensation from any successful judgment award or settlement that may be reached in the future. However as explained above at Q&A #5 above, there are a number of reasons why you may consider completing the Questionnaire now.
11. Is there a similar Questionnaire in the other Takata Airbag Class Actions?
Only Toyota and Subaru are asking Group Members to complete Questionnaires in the Toyota Class Action and Subaru Class Action. In other words, only owners or lessees of Subaru vehicles who meet the Group Member definition will have the opportunity to complete the Questionnaire. If you own a Subaru vehicle, you will receive a separate Notice regarding the Subaru Questionnaire.
The defendants to the other Takata Airbag Class Actions (i.e. Volkswagen, Honda, Mazda, Nissan and BMW) have not requested a similar process in their proceedings.
IMPORTANT REMINDER REGARDING THE TAKATA AIRBAG RECALL
If you own a Subaru vehicle that has been recalled because it is fitted with a Takata airbag and you have not had the airbag replaced, please urgently contact a Subaru dealer. Keep a record of your conversation and any correspondence.
Getting your airbag replaced in accordance with the recall will not affect your ability to participate in the Subaru Class Action.
More details about the Takata airbag recall and how you can contact your nearest Subaru dealer can be found at: https://www.subaru.com.au/takata-recall. If you are unsure whether your vehicle is affected, you can check at: www.ismyairbagsafe.com.au.