FEDERAL COURT OF AUSTRALIA
Bouchere v Car Festivals Pty Ltd [2022] FCA 1070
File number(s): NSD 1446 of 2019 Judgment of: BROMWICH J Date of judgment: 9 September 2022 Catchwords: PRACTICE AND PROCEDURE – application for settlement approval of representative proceedings pursuant s 33V and 33ZF of the Federal Court of Australia Act 1976 (Cth) – where there is no litigation funder involved – whether proposed settlement is proposed settlement is fair, reasonable and in the interests of group members as a whole – settlement approved
Legislation: Federal Court of Australia Act 1976 (Cth) ss 33V; 33ZF
Motor Accidents (Compensation) Act 1979 (NT)
Public Trustee Act 1979 (NT) s 71
Cases cited: Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 71 FCR 250
Australian Securities and Investments Commission v Richards [2013] FCAFC 89
Division: General Division Registry: New South Wales National Practice Area: Other Federal Jurisdiction Number of paragraphs: 19 Date of hearing: 9 September 2022 Counsel for the Applicant: J Sheller SC Solicitor for the Applicant: Greg Walsh and Co Counsel for the First and Third Respondents: N Oreb Solicitor for the First and Third Respondents: Hall and Wilcox Counsel for the Second Respondent: H Chiu Solicitor for the Second Respondent: Clyde and Co Counsel for the Intervener: The Intervener did not appear ORDERS
NSD 1446 of 2019 BETWEEN: LYNELLE BOUCHERE
Applicant
AND: CAR FESTIVALS PTY LTD
First Respondent
NORTHERN TERRITORY MAJOR EVENTS PTY LTD
Second Respondent
SUMMERNATS PTY LTD
Third Respondent
ATTORNEY GENERAL OF THE NORTHERN TERRITORY
Intervener
ORDER MADE BY:
BROMWICH J
DATE OF ORDER:
9 SEPTEMBER 2022
THE COURT NOTES THAT:
1.The applicant complied with order 6 of the orders made on 11 August 2022 regarding provision of the Notice of Proposed Settlement to the group members defined in paragraph 1(b) of the applicant’s Second Further Amended Statement of Claim filed 27 August 2020 (Group Members).
2.No Group Member has opted out or given notice of objection to the proposed settlement of this proceeding.
AND THE COURT ORDERS THAT:
Approval of settlement
3.Pursuant to sections 33V and 33ZF of the Federal Court of Australia Act 1976 (Cth) (the Act), the proposed settlement of the proceeding is approved and the proceedings (including all cross-claims) are dismissed upon the terms of:
(a)the individual settlement deeds, copies of which are Exhibits 2(a) to (l) (Deeds); and
(b)the schedule of proposed distribution of the global settlement sum which appears in Confidential Exhibit GW2 to the affidavit of Gregory Alexander Walsh sworn 8 September 2022 (Schedule of Distribution).
4.Pursuant to section 33ZB of the Act, the persons affected and bound by the settlement are the applicant and respondents to the proceedings, the Group Members, and the Motor Accidents Compensation Commission of the Northern Territory.
5.Pursuant to section 33ZF of the Act,
(a)each Settlement Sum, as defined in the Deeds, must be…
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- AGLC
- Bouchere v Car Festivals Pty Ltd [2022] FCA 1070
- Case
- [2022] FCA 1070
- Decision Date
CaseChat Overview and Summary
The court examined the proposed settlement agreement, including the individual settlement deeds and the schedule of distribution, to determine its fairness and reasonableness. The court considered the overall benefits of the settlement for the group members and the absence of a litigation funder, which might otherwise influence the settlement terms. The court also assessed whether the settlement adequately addressed the claims and provided appropriate compensation for the group members. After reviewing the evidence and arguments presented, the court concluded that the proposed settlement was fair, reasonable, and in the best interests of the group members as a whole.
Accordingly, the court approved the proposed settlement and dismissed the representative proceeding, including all cross-claims, on the terms of the individual settlement deeds and the schedule of distribution. The court also made orders regarding the appointment of a litigation representative for Trae McLaren, the payment of settlement sums, the treatment of confidential affidavits, and the vacating of previous costs orders. The parties were granted liberty to apply for further orders as necessary.
Orders
Orders of the court
Approval of settlement
3. Pursuant to sections 33V and 33ZF of the Federal Court of Australia Act 1976 (Cth) (the Act), the proposed settlement of the proceeding is approved and the proceedings (including all cross-claims) are dismissed upon the terms of:
(a) the individual settlement deeds, copies of which are Exhibits 2(a) to (l) (Deeds); and
(b) the schedule of proposed distribution of the global settlement sum which appears in Confidential Exhibit GW2 to the affidavit of Gregory Alexander Walsh sworn 8 September 2022 (Schedule of Distribution).
4. Pursuant to section 33ZB of the Act, the persons affected and bound by the settlement are the applicant and respondents to the proceedings, the Group Members, and the Motor Accidents Compensation Commission of the Northern Territory.
5. Pursuant to section 33ZF of the Act,
(a) each Settlement Sum, as defined in the Deeds, must be paid in accordance with the terms of those Deeds and the Schedule of Distribution; and
(b) the legal costs and disbursements deposed to in the affidavit of Gregory Alexander Walsh sworn 9 August 2022, are approved.
Trae McLaren
6. Pursuant to rule 9.63 of the Federal Court Rules 2011 (the Rules), Jay Bouchere, of 11 Petherick Road, Humpty Doo NT 0836, self-employed welder, be appointed as a litigation representative for Trae McLaren nunc pro tunc.
7. Pursuant to rule 1.34 of the Rules, the requirements for filing an affidavit in accordance with rules 9.63(3) and 9.64 be dispensed with.
8. Pursuant to r 1.33 and r 9.70(3) and s 71 of the Public Trustee Act 1979 (NT), Trae McLaren’s apportionment of the settlement sum is to be paid to the Public Trustee in accordance with clause 2(g) of the deed executed on his behalf, to be held for the benefit of Trae McLaren, with that amount and any interest accrued to be paid to Trae McLaren directly upon him reaching majority.
Confidentiality
9. Pursuant to ss 37AF and 37AG(1)(a) of the Act, to prevent prejudice to the proper administration of justice, the confidential affidavits of Gregory Alexander Walsh sworn 9 August 2022 and 8 September 2022, and the annexures and exhibits thereto, are:
(a) to be treated as confidential;
(b) to be marked “suppressed” on the Court’s electronic court file;
(c) not to be published or made available; and
(d) not to be disclosed to any person or entity except the applicant and her legal representatives, with such permitted disclosures to be upon terms that none of those parties or persons disclose that material or any part thereof to any person or entity.
10. The period for which order 9 above operates is 3 years from the date of these orders, which may be varied and in respect of which there is liberty to apply generally.
Final orders
11. This proceedings is dismissed with no order as to costs of the proceeding or the costs of or incidental to the proceeding (including the application for order 1 above), and there be no order as to costs in relation to any reserved or other costs of the proceeding.
12. Pursuant to s 33ZF of the Act, all costs orders previously made in the proceeding are vacated.
13. The parties have liberty to apply.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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