Court queries decisions in Haselhurst and Wigmans; finds there's power to make pre-settlement class closure orders

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This was a decision concerning a settlement approval application in relation to an open class shareholder class action. Justice Beach approved the settlement of $38.4 million, finding that the net return to class members of approximately 60% was fair and reasonable. 

Proposed Deductions

In relation to the proposed deductions from the settlement sum, his Honour observed that:

(a) the applicants’ legal costs of $5.516 million were not disproportionate to the overall scope and nature of the claim

(b) the contractual commission rates charged by the funders reflect the remuneration agreed between the funders and the funded class members and no common fund order had been sought; and

(c) it was just for the costs of the proceeding to be spread between funded and unfunded class members via a funding equalisation order – in this respect, the commission rates (25%-28% of each funded member’s gross entitlement) were reasonable.

Class Closure Orders

This decision is significant because his Honour found that the Court had the power under s 33ZF of the Federal Court of Australia Act 1976 (Cth) (FCAA) to make class closure and registration orders before settlement or judgment. In doing so, his Honour distinguished, and queried the correctness of, the recent decisions in Haselhurst v Toyota Motor Corporation Australia Ltd (2020) 101 NSWLR 890; [2020] NSWCA 66 (Haselhurst) and Wigmans v AMP Ltd (2020) 102 NSWLR 199; [2020] NSWCA 104 (Wigmans) which came in the wake of the High Court’s decision in BMW Australia Ltd v Brewster (2019) 374 ALR 627; [2019] HCA 45 (Brewster). In Haselhurst and Wigmans the New South Wales Court of Appeal found that such orders could not be made under the cognate provision of the Civil Procedure Act 2005 (NSW) (s 183), on the basis that the orders effected a contingent extinguishment of class members’ choses in action and so could not be said to be necessary or appropriate to ensure justice was done in the proceeding. His Honour observed:

• There were two significant differences between the orders in this case (March 2020 Orders) and the orders in Haselhurst:
  
  
  • The March 2020 Orders did not use the language of extinguishment or ‘barring’ – they were expressed in terms of a class member not being “permitted to seek any benefit pursuant to any settlement (subject to Court approval)”. In this way, the March 2020 Orders were in anticipation of the exercise of power that must occur at the s 33V stage of the proceeding.
  • The March 2020 Orders were expressly conditioned by the words “without the leave of the Court”, to indicate that the question as to whether unregistered class members ought to receive a distribution is a question that the court would need to consider at the s 33V application.

Hence, his Honour found the March 2020 Orders did not effect an extinguishment of class members’ claims.

• In any event, the notion of contingent extinguishment is problematic – as his Honour observed “[i]f there is a contingency, nothing has been extinguished” (at [82]).
  
  
• A class closure order is not in the same category as an early common fund order, which the High Court in Brewster found to be directed at ensuring the economic viability of the proceeding. The purpose of a class closure order is not extraneous to dealing with the substantive rights of class members.
  
  
• Part IVA of the FCAA is not inconsistent with class members being required to take a positive step before settlement or judgment at an initial trial. Further, nothing in Brewster requires the conclusion that s 33ZF of the FCAA cannot be called in aid to require class members to take a positive step in the proceeding. Section 33ZF enables an order which is directed to ensuring that a mediation can proceed effectively, particularly if the goal is to facilitate an exercise of power under s 33V.
  
  
• The existence of a conflict of interest between registered and unregistered class members is not a sound basis for rejecting class closure orders because any settlement is subject to Court approval under s 33V of the FCAA.

Wetdal Pty Ltd as Trustee for the BlueCo Two Superannuation Fund v Estia Health Ltd [2021] FCA 475 

Federal Court of Australia, Beach J,
7 May 2021

Applicants’ Solicitors: Phi Finney McDonald;
Respondents’ Solicitors: Minter Ellison;
Applicants’ Funder: ICP Capital Pty Ltd, LLS Fund Services Pty Ltd

Austlii Link: Accessible here

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