Cantor v Audi Australia Pty Limited (No 7)
[2022] FCA 317
•1 April 2022
FEDERAL COURT OF AUSTRALIA
Cantor v Audi Australia Pty Limited (No 7) [2022] FCA 317
File numbers: NSD 1307 of 2015
NSD 1308 of 2015
NSD 1459 of 2015
NSD 1472 of 2015
NSD 1473 of 2015Judgment of: YATES J Date of judgment: 1 April 2022 Catchwords: CONSUMER LAW – representative proceedings – whether the Court should make non-publication orders, on the ground that non-publication is necessary to prevent prejudice to the proper administration of justice – ss 37AF and 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth) – whether the Court should approve the applicants’ legal costs – whether the Court should approve the Administrator’s costs of administering the Settlement Scheme – where costs verified as being reasonable by a costs expert – whether the Court should make a self-executing order for approval of further costs, where the Court should retain control of the approval process for further costs Legislation: Federal Court of Australia Act 1976 (Cth) ss 37AE, 37AF, 37AG, 37AJ, 33V, 33ZF, Pt VAA
Evidence Act 1995 (Cth) ss 59, 75
Cases cited: Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741
Cannon v Griffiths & Ors (No 2) [2015] NSWSC 1329
Cantor v Audi Australia Pty Limited (No 5) [2020] FCA 637
Clime Capital Limited v UGL Pty Limited [2020] FCA 66
Gray v State of Victoria (Department of Education and Early Childhood Development) [2017] FCA 353
Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651
Lifeplan Australia Friendly Society Limited v S&P Global Inc [2018] FCA 379
Division: General Division Registry: New South Wales National Practice Area: Commercial and Corporations Sub-area: Regulator and Consumer Protection Number of paragraphs: 81 Date of last submissions: 18 March 2022 Date of hearing: 15 March 2022 Counsel for the Applicants
in NSD 1307 of 2015, and
NSD 1308 of 2015:Dr P Cashman Solicitor for the Applicants
in NSD 1307 of 2015, and
NSD 1308 of 2015:Bannister Law Solicitor for the Applicants
in NSD 1459 of 2015,
NSD 1472 of 2015, and
NSD 1473 of 2015:Mr J K Schimmel of Maurice Blackburn Lawyers Counsel for the Respondents
in NSD 1307 of 2015,
NSD 1308 of 2015,
NSD 1459 of 2015,
NSD 1472 of 2015, and
NSD 1473 of 2015:Mr I J M Ahmed Solicitor for the Respondents
in NSD 1307 of 2015,
NSD 1308 of 2015,
NSD 1459 of 2015,
NSD 1472 of 2015, and
NSD 1473 of 2015:Clayton Utz ORDERS
NSD 1307 of 2015 BETWEEN: RICHARD CANTOR
Applicant
AND: AUDI AUSTRALIA PTY LIMITED (ACN 077 092 776)
Respondent
ORDER MADE BY:
YATES J
DATE OF ORDER:
1 APRIL 2022
THE COURT ORDERS THAT:
Definitions
1.Confidential Settlement Documents means the information and evidence in:
(a)Paragraphs 5 to 15 of the confidential affidavit of Julian Klaus Schimmel affirmed on 10 December 2019 and Annexure 2 to the Deed of Release and Settlement, comprising Annexure JK-67 to the confidential affidavit of Julian Klaus Schimmel affirmed on 10 December 2019;
(b)Annexure 2 to the Deed of Release and Settlement in Annexure JKS-68 to the confidential affidavit of Julian Klaus Schimmel affirmed on 20 March 2020;
(c)The Settlement Payment Methodology specified in Annexure JKS-69 to the confidential affidavit of Julian Klaus Schimmel affirmed on 20 March 2020;
(d)The expert report of Terence Michael Potter dated 20 March 2020 including all appendices;
(e)AAU.500.069.0001, VGA.500.093.0001, VGA.500.093.0002, and VGA.500.093.0003, which form part of Exhibit AGR1 to the Affidavit of Alexandra Gay Rose sworn 24 March 2020;
(f)Paragraphs 3.1(2) and (3), 6.1 to 6.25 and Annexure A to the expert report of Abe Tomas dated 20 March 2020 and the letter of instruction from Maurice Blackburn Pty Ltd (Maurice Blackburn) to Mr Tomas;
(g)Paragraphs 8 to 9 of the confidential affidavit of Gregory John Williams sworn on 25 March 2020;
(h)The formula in section 6.1.1, footnote 33, and the charts in section 6.2.8, of the Confidential Settlement Administration Report provided to the Court on 17 December 2021; and
(i)Annexures D and E of the Confidential Settlement Administration Report provided to the Court on 17 December 2021.
2.Deed means the Deed of Release and Settlement approved in Order 6(a) made on 1 April 2020.
3.Maurice Blackburn means Maurice Blackburn Pty Ltd in its capacity as the Administrator of the Settlement Scheme appointed in Order 10 made on 1 April 2020.
4.Settlement Scheme means the Settlement Scheme (version 3) approved in Order 1 made on 20 November 2020.
Exhibits AGR-1 and AGR-2
5.Notwithstanding notation 22 made on 1 April 2020, from the date of these orders, the solicitors for the Respondents are no longer bound to retain the USB containing exhibits AGR-1 and AGR-2 to the affidavit of Alexandra Gay Rose dated 24 March 2020.
Notation Sought
6.For the purpose of Order 11(c) made on 1 April 2020, and:
(a)having regard to the report as to the completion of the Settlement Scheme provided by Maurice Blackburn to the Court on 17 December 2021 as noted in paragraph 6 of the orders made on 21 December 2021,
(b)but without prejudice to the parties’ or the Administrator’s rights to seek orders consequential to the Deed and/or Settlement Scheme or other orders ancillary to the completion of the settlement or the conclusion of the proceedings,
the administration of the settlement was completed on 21 September 2021 when the final Settlement Payment was paid to a Participating Group Member (as defined in the Settlement Scheme) and, accordingly, the dismissal of the proceeding took effect on that date.
Confidential Settlement Documents
7.Pursuant to sections 37AF and 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth) (the Act), on the ground that that the order is necessary to prevent prejudice to the proper administration of justice, the Confidential Settlement Documents:
(a)be treated as confidential;
(b)to the extent that such material is held by the Court in paper form, be held with the Court file in envelopes marked “Not to be opened except by leave of the Court or a Judge” or destroyed;
(c)to the extent that such material is held by the Court in electronic form, be kept in a confidential section of the relevant Court file;
(d)not be published, made available (whether electronically or otherwise) or disclosed (by publication or otherwise) to any other person than:
(i)the Court;
(ii)the applicants in proceedings NSD1459 of 2015, NSD1472 of 2015 and NSD1473 of 2015 and their legal representatives;
(iii)the applicants and the legal representatives of the applicants in proceedings NSD1307 of 2015 and NSD1308 of 2015;
(iv)the respondents in proceedings NSD1459 of 2015, NSD1472 of 2015, NSD1473 of 2015, NSD1307 of 2015 and NSD1308 of 2015 and their legal representatives; and
(v)Maurice Blackburn in its capacity as Settlement Administrator; and
(vi)Michael Potter and Boyd Harris of Axiom Forensics, being accounting experts engaged by the Settlement Administrator.
8.Pursuant to section 37AJ of the Act, Order 7 shall operate until the earlier of midnight on 1 February 2024 or further order of the Court.
AND THE COURT NOTES THAT:
9.The average net Settlement Payment (after deducting Funding Payments for Participating Group Members with that obligation) was $2,819; and
10.The total number of Participating Group Members is 43,894 and total number of Registered Affected Vehicles is 43,697.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
NSD 1308 of 2015 BETWEEN: JOSEFINA TOLENTINO
Applicant
AND: VOLKSWAGEN GROUP AUSTRALIA PTY LIMITED
(ACN 093 117 876)
Respondent
ORDER MADE BY:
YATES J
DATE OF ORDER:
1 APRIL 2022
THE COURT ORDERS THAT:
Definitions
1.Confidential Settlement Documents means the information and evidence in:
(a)Paragraphs 5 to 15 of the confidential affidavit of Julian Klaus Schimmel affirmed on 10 December 2019 and Annexure 2 to the Deed of Release and Settlement, comprising Annexure JK-67 to the confidential affidavit of Julian Klaus Schimmel affirmed on 10 December 2019;
(b)Annexure 2 to the Deed of Release and Settlement in Annexure JKS-68 to the confidential affidavit of Julian Klaus Schimmel affirmed on 20 March 2020;
(c)The Settlement Payment Methodology specified in Annexure JKS-69 to the confidential affidavit of Julian Klaus Schimmel affirmed on 20 March 2020;
(d)The expert report of Terence Michael Potter dated 20 March 2020 including all appendices;
(e)AAU.500.069.0001, VGA.500.093.0001, VGA.500.093.0002, and VGA.500.093.0003, which form part of Exhibit AGR1 to the Affidavit of Alexandra Gay Rose sworn 24 March 2020;
(f)Paragraphs 3.1(2) and (3), 6.1 to 6.25 and Annexure A to the expert report of Abe Tomas dated 20 March 2020 and the letter of instruction from Maurice Blackburn Pty Ltd (Maurice Blackburn) to Mr Tomas;
(g)Paragraphs 8 to 9 of the confidential affidavit of Gregory John Williams sworn on 25 March 2020;
(h)The formula in section 6.1.1, footnote 33, and the charts in section 6.2.8, of the Confidential Settlement Administration Report provided to the Court on 17 December 2021; and
(i)Annexures D and E of the Confidential Settlement Administration Report provided to the Court on 17 December 2021.
2.Deed means the Deed of Release and Settlement approved in Order 6(a) made on 1 April 2020.
3.Maurice Blackburn means Maurice Blackburn Pty Ltd in its capacity as the Administrator of the Settlement Scheme appointed in Order 10 made on 1 April 2020.
4.Settlement Scheme means the Settlement Scheme (version 3) approved in Order 1 made on 20 November 2020.
Exhibits AGR-1 and AGR-2
5.Notwithstanding notation 22 made on 1 April 2020, from the date of these orders, the solicitors for the Respondents are no longer bound to retain the USB containing exhibits AGR-1 and AGR-2 to the affidavit of Alexandra Gay Rose dated 24 March 2020.
Notation Sought
6.For the purpose of Order 11(c) made on 1 April 2020, and:
(a)having regard to the report as to the completion of the Settlement Scheme provided by Maurice Blackburn to the Court on 17 December 2021 as noted in paragraph 6 of the orders made on 21 December 2021,
(b)but without prejudice to the parties’ or the Administrator’s rights to seek orders consequential to the Deed and/or Settlement Scheme or other orders ancillary to the completion of the settlement or the conclusion of the proceedings,
the administration of the settlement was completed on 21 September 2021 when the final Settlement Payment was paid to a Participating Group Member (as defined in the Settlement Scheme) and, accordingly, the dismissal of the proceeding took effect on that date.
Confidential Settlement Documents
7.Pursuant to sections 37AF and 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth) (the Act), on the ground that that the order is necessary to prevent prejudice to the proper administration of justice, the Confidential Settlement Documents:
(a)be treated as confidential;
(b)to the extent that such material is held by the Court in paper form be held with the Court file in envelopes marked “Not to be opened except by leave of the Court or a Judge” or destroyed;
(c)to the extent that such material is held by the Court in electronic form, be kept in a confidential section of the relevant Court file;
(d)not be published, made available (whether electronically or otherwise) or disclosed (by publication or otherwise) to any other person than:
(i)the Court;
(ii)the applicants in proceedings NSD1459 of 2015, NSD1472 of 2015 and NSD1473 of 2015 and their legal representatives;
(iii)the applicants and the legal representatives of the applicants in proceedings NSD1307 of 2015 and NSD1308 of 2015;
(iv)the respondents in proceedings NSD1459 of 2015, NSD1472 of 2015, NSD1473 of 2015, NSD1307 of 2015 and NSD1308 of 2015 and their legal representatives; and
(v)Maurice Blackburn in its capacity as Settlement Administrator; and
(vi)Michael Potter and Boyd Harris of Axiom Forensics, being accounting experts engaged by the Settlement Administrator.
8.Pursuant to section 37AJ of the Act, Order 7 shall operate until the earlier of midnight on 1 February 2024 or further order of the Court.
AND THE COURT NOTES THAT:
9.The average net Settlement Payment (after deducting Funding Payments for Participating Group Members with that obligation) was $2,819; and
10.The total number of Participating Group Members is 43,894 and total number of Registered Affected Vehicles is 43,697.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
NSD 1459 of 2015 BETWEEN: ALISTER DALTON
First Applicant
JOANNA DALTON
Second ApplicantAND: VOLKSWAGEN AG
First RespondentVOLKSWAGEN GROUP AUSTRALIA PTY LTD
(ACN 093 117 876)
Second Respondent
ORDER MADE BY:
YATES J
DATE OF ORDER:
1 APRIL 2022
THE COURT ORDERS THAT:
Definitions
1.Act means the Federal Court of Australia Act 1976 (Cth).
2.Confidential Settlement Documents means the information and evidence in:
(a)Paragraphs 5 to 15 of the confidential affidavit of Julian Klaus Schimmel affirmed on 10 December 2019 and Annexure 2 to the Deed of Release and Settlement, comprising Annexure JK-67 to the confidential affidavit of Julian Klaus Schimmel affirmed on 10 December 2019;
(b)Annexure 2 to the Deed of Release and Settlement in Annexure JKS-68 to the confidential affidavit of Julian Klaus Schimmel affirmed on 20 March 2020;
(c)The Settlement Payment Methodology specified in Annexure JKS-69 to the confidential affidavit of Julian Klaus Schimmel affirmed on 20 March 2020;
(d)The expert report of Terence Michael Potter dated 20 March 2020 including all appendices;
(e)AAU.500.069.0001, VGA.500.093.0001, VGA.500.093.0002, and VGA.500.093.0003, which form part of Exhibit AGR1 to the Affidavit of Alexandra Gay Rose sworn 24 March 2020;
(f)Paragraphs 3.1(2) and (3), 6.1 to 6.25 and Annexure A to the expert report of Abe Tomas dated 20 March 2020 and the letter of instruction from Maurice Blackburn Pty Ltd (Maurice Blackburn) to Mr Tomas;
(g)Paragraphs 8 to 9 of the confidential affidavit of Gregory John Williams sworn on 25 March 2020;
(h)The formula in section 6.1.1, footnote 33, and the charts in section 6.2.8, of the Confidential Settlement Administration Report provided to the Court on 17 December 2021; and
(i)Annexures D and E of the Confidential Settlement Administration Report provided to the Court on 17 December 2021.
3.Deed means the Deed of Release and Settlement approved in Order 6(a) made on 1 April 2020.
4.Further Costs means, in respect of the period from 1 November 2021 onwards:
(a)the Maurice Blackburn component of the Applicants’ Reasonable Costs (as defined in clause 1.1 of the Deed); and
(b)Administration Costs.
5.Further Costs Report means any further expert report from Ian Ramsey-Stewart verifying the reasonable amounts of the Further Costs.
6.Maurice Blackburn means Maurice Blackburn Pty Ltd in its capacity as the lawyers for the Applicants in proceedings NSD1459/2015, NSD1472/2015 and NSD1473/2015 and/or in its capacity as the Administrator of the Settlement Scheme appointed in Order 10 made on 1 April 2020.
7.Settlement Administration Report means the report as to the completion of the Settlement Scheme provided by Maurice Blackburn to the Court on 17 December 2021 as noted in paragraph 6 of the orders made on 21 December 2021.
8.Settlement Scheme means the Settlement Scheme (version 3) approved in Order 1 made on 20 November 2020.
9.The following terms have the meanings given to them in the Settlement Scheme:
(a)Administration Costs;
(b)Administrator;
(c)Aggregate Settlement Sum;
(d)Participating Group Member;
(e)Settlement Account;
(f)Settlement Payment; and
(g)Settlement Sum Interest.
Costs up to 31 October 2021
10.Pursuant to ss 33V and 33ZF of the Act:
(a)the Maurice Blackburn component of the Applicants’ Reasonable Costs (as defined in clause 1.1 of the Deed) in respect of the period from 1 March 2020 up to and including 31 October 2021 are approved in the amount of $889,142.49, such costs being verified as reasonable in the report of Ian Ramsey-Stewart dated 14 February 2022 and filed herein, and are to be paid by the Respondents in accordance with clause 5.1 of the Deed.
(b)Administration Costs in respect of the period up to and including 31 October 2021 be approved in the amount of $5,504,881.22, such costs being verified as reasonable in the report of Ian Ramsey-Stewart dated 14 February 2022 and filed herein, and are to be paid in accordance with order 11.
11.The Administration Costs approved by order 10(b) are to be paid as follows:
(a)first, by the Administrator applying all funds remaining in the Settlement Account to the payment of Administration Costs, with those remaining funds comprising:
(i)Settlement Sum Interest, which is to be applied to the payment of Administration Costs in accordance with clause 9.4 of the Settlement Scheme;
(ii)$41,798.23 in unpaid Settlement Payments, which amount is to be applied to the payment of Administration Costs in accordance with clauses 11.4 and 13.3(c) of the Settlement Scheme; and
(iii)the surplus of $5.22 between the Aggregate Settlement Sum and the money that was distributed to Participating Group Members by the Administrator, as a result of rounding in the calculation of Settlement Payments, as described in paragraph 6.4.5 of the Settlement Administration Report;
(b)secondly, the balance of the approved Administration Costs is to be notified by the Administrator to the Respondents’ legal representatives, and is to be paid by the Respondents in accordance with clause 9.3 of the Deed and clause 14.1 of the Settlement Scheme.
Further Costs (from 1 November 2021 onwards)
12.Within 5 business days of receiving any Further Costs Report, Maurice Blackburn will serve it on the Respondents.
13.Within 5 business days of the Further Costs Report being served, the Respondents will notify Maurice Blackburn whether or not they object to payment of any of the Further Costs.
14.If the Respondents notify Maurice Blackburn that they object to payment of any of the Further Costs, Maurice Blackburn and the Respondents are to confer and seek to resolve the Respondents’ objections and agree upon any orders that may be sought in order to do so.
15.If the Respondents notify Maurice Blackburn that they do not object to payment of any of the Further Costs:
(a)within 5 business days of receiving the notification from the Respondents, Maurice Blackburn is to:
(i)file the Further Costs Report; and
(ii)after conferring with the Respondents, provide to the chambers of Yates J a minute of proposed orders for the approval of the Further Costs; and
(b)the approval of the Further Costs is to be determined in chambers unless the Court directs otherwise.
Expert Reports
16.Pursuant to ss 37AF and 37AG(1)(a) of the Act, until further order, on the ground that the order is necessary to prevent prejudice to the proper administration of justice, appendices 4 to each of the two reports of Ian Ramsey-Stewart dated 14 February 2022 and filed herein:
(a)be treated as confidential;
(b)to the extent that such material is held by the Court in paper form, be held with the Court file in envelopes marked “Not to be opened except by leave of the Court or a Judge” or destroyed;
(c)to the extent that such material is held by the Court in electronic form, be kept in a confidential section of the relevant Court file;
(d)not be published, made available (whether electronically or otherwise) or disclosed to any other person than:
(i)the Court;
(ii)the applicants in proceedings NSD1459 of 2015, NSD1472 of 2015 and NSD1473 of 2015;
(iii)Maurice Blackburn; and
(iv)Ian Ramsey-Stewart, being a costs expert engaged by Maurice Blackburn
such permitted disclosures to be on terms that none of those persons or entities disclose the appendices or any part thereof to any person or entity other than those listed in this order.
17.As soon as practicable, Maurice Blackburn is to file a redacted copy of the Settlement Administration Report, with the redactions concealing the information that is the subject of Order 20.
Exhibits AGR-1 and AGR-2
18.Notwithstanding notation 22 made on 1 April 2020, from the date of these orders, the solicitors for the Respondents are no longer bound to retain the USB containing exhibits AGR-1 and AGR-2 to the affidavit of Alexandra Gay Rose dated 24 March 2020.
Notations Sought
19.For the purpose of Order 11(c) made on 1 April 2020, and:
(a)having regard to the Settlement Administration Report,
(b)but without prejudice to the parties’ or the Administrator’s rights to seek orders consequential to the Deed and/or Settlement Scheme or other orders ancillary to the completion of the settlement or the conclusion of the proceedings,
the administration of the settlement was completed on 21 September 2021 when the final Settlement Payment was paid to a Participating Group Member and, accordingly, the dismissal of the proceeding took effect on that date.
Confidential Settlement Documents
20.Pursuant to sections 37AF and 37AG(1)(a) of the Act, on the ground that that the order is necessary to prevent prejudice to the proper administration of justice, the Confidential Settlement Documents:
(a)be treated as confidential;
(b)to the extent that such material is held by the Court in paper form be held with the Court file in envelopes marked “Not to be opened except by leave of the Court or a Judge” or destroyed;
(c)to the extent that such material is held by the Court in electronic form, be kept in a confidential section of the relevant Court file;
(d)not be published, made available (whether electronically or otherwise) or disclosed (by publication or otherwise) to any other person than:
(i)the Court;
(ii)the applicants in proceedings NSD1459 of 2015, NSD1472 of 2015 and NSD1473 of 2015 and their legal representatives;
(iii)the applicants and the legal representatives of the applicants in proceedings NSD1307 of 2015 and NSD1308 of 2015;
(iv)the respondents in proceedings NSD1459 of 2015, NSD1472 of 2015, NSD1473 of 2015, NSD1307 of 2015 and NSD1308 of 2015 and their legal representatives; and
(v)Maurice Blackburn in its capacity as Settlement Administrator; and
(vi)Michael Potter and Boyd Harris of Axiom Forensics, being accounting experts engaged by the Settlement Administrator.
21.Pursuant to section 37AJ of the Act, Order 20 shall operate until the earlier of midnight on 1 February 2024 or further order of the Court.
AND THE COURT NOTES THAT:
22.The average net Settlement Payment (after deducting Funding Payments for Participating Group Members with that obligation) was $2,819; and
23.The total number of Participating Group Members is 43,894 and total number of Registered Affected Vehicles is 43,697.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
NSD 1472 of 2015 BETWEEN: ROBYN TANYA RICHARDSON
Applicant
AND: AUDI AG
First Respondent
AUDI AUSTRALIA PTY LIMITED (ACN 077 092 776)
Second Respondent
VOLKSWAGEN AG
Third Respondent
ORDER MADE BY:
YATES J
DATE OF ORDER:
1 APRIL 2022
THE COURT ORDERS THAT:
Definitions
1.Act means the Federal Court of Australia Act 1976 (Cth).
2.Confidential Settlement Documents means the information and evidence in:
(a)Paragraphs 5 to 15 of the confidential affidavit of Julian Klaus Schimmel affirmed on 10 December 2019 and Annexure 2 to the Deed of Release and Settlement, comprising Annexure JK-67 to the confidential affidavit of Julian Klaus Schimmel affirmed on 10 December 2019;
(b)Annexure 2 to the Deed of Release and Settlement in Annexure JKS-68 to the confidential affidavit of Julian Klaus Schimmel affirmed on 20 March 2020;
(c)The Settlement Payment Methodology specified in Annexure JKS-69 to the confidential affidavit of Julian Klaus Schimmel affirmed on 20 March 2020;
(d)The expert report of Terence Michael Potter dated 20 March 2020 including all appendices;
(e)AAU.500.069.0001, VGA.500.093.0001, VGA.500.093.0002, and VGA.500.093.0003, which form part of Exhibit AGR1 to the Affidavit of Alexandra Gay Rose sworn 24 March 2020;
(f)Paragraphs 3.1(2) and (3), 6.1 to 6.25 and Annexure A to the expert report of Abe Tomas dated 20 March 2020 and the letter of instruction from Maurice Blackburn Pty Ltd (Maurice Blackburn) to Mr Tomas;
(g)Paragraphs 8 to 9 of the confidential affidavit of Gregory John Williams sworn on 25 March 2020;
(h)The formula in section 6.1.1, footnote 33, and the charts in section 6.2.8, of the Confidential Settlement Administration Report provided to the Court on 17 December 2021; and
(i)Annexures D and E of the Confidential Settlement Administration Report provided to the Court on 17 December 2021.
3.Deed means the Deed of Release and Settlement approved in Order 6(a) made on 1 April 2020.
4.Further Costs means, in respect of the period from 1 November 2021 onwards:
(a)the Maurice Blackburn component of the Applicants’ Reasonable Costs (as defined in clause 1.1 of the Deed); and
(b)Administration Costs.
5.Further Costs Report means any further expert report from Ian Ramsey-Stewart verifying the reasonable amounts of the Further Costs.
6.Maurice Blackburn means Maurice Blackburn Pty Ltd in its capacity as the lawyers for the Applicants in proceedings NSD1459/2015, NSD1472/2015 and NSD1473/2015 and/or in its capacity as the Administrator of the Settlement Scheme appointed in Order 10 made on 1 April 2020.
7.Settlement Administration Report means the report as to the completion of the Settlement Scheme provided by Maurice Blackburn to the Court on 17 December 2021 as noted in paragraph 6 of the orders made on 21 December 2021.
8.Settlement Scheme means the Settlement Scheme (version 3) approved in Order 1 made on 20 November 2020.
9.The following terms have the meanings given to them in the Settlement Scheme:
(a)Administration Costs;
(b)Administrator;
(c)Aggregate Settlement Sum;
(d)Participating Group Member;
(e)Settlement Account;
(f)Settlement Payment; and
(g)Settlement Sum Interest.
Costs up to 31 October 2021
10.Pursuant to ss 33V and 33ZF of the Act:
(a)the Maurice Blackburn component of the Applicants’ Reasonable Costs (as defined in clause 1.1 of the Deed) in respect of the period from 1 March 2020 up to and including 31 October 2021 are approved in the amount of $889,142.49, such costs being verified as reasonable in the report of Ian Ramsey-Stewart dated 14 February 2022 and filed herein, and are to be paid by the Respondents in accordance with clause 5.1 of the Deed.
(b)Administration Costs in respect of the period up to and including 31 October 2021 be approved in the amount of $5,504,881.22, such costs being verified as reasonable in the report of Ian Ramsey-Stewart dated 14 February 2022 and filed herein, and are to be paid in accordance with order 11.
11.The Administration Costs approved by order 10(b) are to be paid as follows:
(a)first, by the Administrator applying all funds remaining in the Settlement Account to the payment of Administration Costs, with those remaining funds comprising:
(i)Settlement Sum Interest, which is to be applied to the payment of Administration Costs in accordance with clause 9.4 of the Settlement Scheme;
(ii)$41,798.23 in unpaid Settlement Payments, which amount is to be applied to the payment of Administration Costs in accordance with clauses 11.4 and 13.3(c) of the Settlement Scheme; and
(iii)the surplus of $5.22 between the Aggregate Settlement Sum and the money that was distributed to Participating Group Members by the Administrator, as a result of rounding in the calculation of Settlement Payments, as described in paragraph 6.4.5 of the Settlement Administration Report;
(b)secondly, the balance of the approved Administration Costs is to be notified by the Administrator to the Respondents’ legal representatives, and is to be paid by the Respondents in accordance with clause 9.3 of the Deed and clause 14.1 of the Settlement Scheme.
Further Costs (from 1 November 2021 onwards)
12.Within 5 business days of receiving any Further Costs Report, Maurice Blackburn will serve it on the Respondents.
13.Within 5 business days of the Further Costs Report being served, the Respondents will notify Maurice Blackburn whether or not they object to payment of any of the Further Costs.
14.If the Respondents notify Maurice Blackburn that they object to payment of any of the Further Costs, Maurice Blackburn and the Respondents are to confer and seek to resolve the Respondents’ objections and agree upon any orders that may be sought in order to do so.
15.If the Respondents notify Maurice Blackburn that they do not object to payment of any of the Further Costs:
(a)within 5 business days of receiving the notification from the Respondents, Maurice Blackburn is to:
(i)file the Further Costs Report; and
(ii)after conferring with the Respondents, provide to the chambers of Yates J a minute of proposed orders for the approval of the Further Costs; and
(b)the approval of the Further Costs is to be determined in chambers unless the Court directs otherwise.
Expert Reports
16.Pursuant to ss 37AF and 37AG(1)(a) of the Act, until further order, on the ground that the order is necessary to prevent prejudice to the proper administration of justice, appendices 4 to each of the two reports of Ian Ramsey-Stewart dated 14 February 2022 and filed herein:
(a)be treated as confidential;
(b)to the extent that such material is held by the Court in paper form, be held with the Court file in envelopes marked “Not to be opened except by leave of the Court or a Judge” or destroyed;
(c)to the extent that such material is held by the Court in electronic form, be kept in a confidential section of the relevant Court file;
(d)not be published, made available (whether electronically or otherwise) or disclosed to any other person than:
(i)the Court;
(ii)the applicants in proceedings NSD1459 of 2015,NSD1472 of 2015 and NSD1473 of 2015;
(iii)Maurice Blackburn; and
(iv)Ian Ramsey-Stewart, being a costs expert engaged by Maurice Blackburn
such permitted disclosures to be on terms that none of those persons or entities disclose the appendices or any part thereof to any person or entity other than those listed in this order.
17.As soon as practicable, Maurice Blackburn is to file a redacted copy of the Settlement Administration Report, with the redactions concealing the information that is the subject of Order 20.
Exhibits AGR-1 and AGR-2
18.Notwithstanding notation 22 made on 1 April 2020, from the date of these orders, the solicitors for the Respondents are no longer bound to retain the USB containing exhibits AGR-1 and AGR-2 to the affidavit of Alexandra Gay Rose dated 24 March 2020.
Notations Sought
19.For the purpose of Order 11(c) made on 1 April 2020, and:
(a)having regard to the Settlement Administration Report,
(b)but without prejudice to the parties’ or the Administrator’s rights to seek orders consequential to the Deed and/or Settlement Scheme or other orders ancillary to the completion of the settlement or the conclusion of the proceedings,
the administration of the settlement was completed on 21 September 2021 when the final Settlement Payment was paid to a Participating Group Member and, accordingly, the dismissal of the proceeding took effect on that date.
Confidential Settlement Documents
20.Pursuant to sections 37AF and 37AG(1)(a) of the Act, on the ground that that the order is necessary to prevent prejudice to the proper administration of justice, the Confidential Settlement Documents:
(a)be treated as confidential;
(b)to the extent that such material is held by the Court in paper form be held with the Court file in envelopes marked “Not to be opened except by leave of the Court or a Judge” or destroyed;
(c)to the extent that such material is held by the Court in electronic form, be kept in a confidential section of the relevant Court file;
(d)not be published, made available (whether electronically or otherwise) or disclosed (by publication or otherwise) to any other person than:
(i)the Court;
(ii)the applicants proceedings NSD1459 of 2015, NSD1472 of 2015 and NSD1473 of 2015 and their legal representatives;
(iii)the applicants and the legal representatives of the applicants in proceedings NSD1307 of 2015 and NSD1308 of 2015;
(iv)the respondents in proceedings NSD1459 of 2015, NSD1472 of 2015, NSD1473 of 2015, NSD1307 of 2015 and NSD1308 of 2015 and their legal representatives; and
(v)Maurice Blackburn in its capacity as Settlement Administrator; and
(vi)Michael Potter and Boyd Harris of Axiom Forensics, being accounting experts engaged by the Settlement Administrator.
21.Pursuant to section 37AJ of the Act, Order 20 shall operate until the earlier of midnight on 1 February 2024 or further order of the Court.
AND THE COURT NOTES THAT:
22.The average net Settlement Payment (after deducting Funding Payments for Participating Group Members with that obligation) was $2,819; and
23.The total number of Participating Group Members is 43,894 and total number of Registered Affected Vehicles is 43,697.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
NSD 1473 of 2015 BETWEEN: STEVEN ROE
Applicant
AND: SKODA AUTO A.S.
First Respondent
VOLKSWAGEN GROUP AUSTRALIA PTY LIMITED
(ACN 093 117 876)
Second RespondentVOLKSWAGEN AG
Third Respondent
ORDER MADE BY:
YATES J
DATE OF ORDER:
1 APRIL 2022
THE COURT ORDERS THAT:
Definitions
1.Act means the Federal Court of Australia Act 1976 (Cth).
2.Confidential Settlement Documents means the information and evidence in:
(a)Paragraphs 5 to 15 of the confidential affidavit of Julian Klaus Schimmel affirmed on 10 December 2019 and Annexure 2 to the Deed of Release and Settlement, comprising Annexure JK-67 to the confidential affidavit of Julian Klaus Schimmel affirmed on 10 December 2019;
(b)Annexure 2 to the Deed of Release and Settlement in Annexure JKS-68 to the confidential affidavit of Julian Klaus Schimmel affirmed on 20 March 2020;
(c)The Settlement Payment Methodology specified in Annexure JKS-69 to the confidential affidavit of Julian Klaus Schimmel affirmed on 20 March 2020;
(d)The expert report of Terence Michael Potter dated 20 March 2020 including all appendices;
(e)AAU.500.069.0001, VGA.500.093.0001, VGA.500.093.0002, and VGA.500.093.0003, which form part of Exhibit AGR1 to the Affidavit of Alexandra Gay Rose sworn 24 March 2020;
(f)Paragraphs 3.1(2) and (3), 6.1 to 6.25 and Annexure A to the expert report of Abe Tomas dated 20 March 2020 and the letter of instruction from Maurice Blackburn Pty Ltd (Maurice Blackburn) to Mr Tomas;
(g)Paragraphs 8 to 9 of the confidential affidavit of Gregory John Williams sworn on 25 March 2020;
(h)The formula in section 6.1.1, footnote 33, and the charts in section 6.2.8, of the Confidential Settlement Administration Report provided to the Court on 17 December 2021; and
(i)Annexures D and E of the Confidential Settlement Administration Report provided to the Court on 17 December 2021.
3.Deed means the Deed of Release and Settlement approved in Order 6(a) made on 1 April 2020.
4.Further Costs means, in respect of the period from 1 November 2021 onwards:
(a)the Maurice Blackburn component of the Applicants’ Reasonable Costs (as defined in clause 1.1 of the Deed); and
(b)Administration Costs.
5.Further Costs Report means any further expert report from Ian Ramsey-Stewart verifying the reasonable amounts of the Further Costs.
6.Maurice Blackburn means Maurice Blackburn Pty Ltd in its capacity as the lawyers for the Applicants in proceedings NSD1459/2015, NSD1472/2015 and NSD1473/2015 and/or in its capacity as the Administrator of the Settlement Scheme appointed in Order 10 made on 1 April 2020.
7.Settlement Administration Report means the report as to the completion of the Settlement Scheme provided by Maurice Blackburn to the Court on 17 December 2021 as noted in paragraph 6 of the orders made on 21 December 2021.
8.Settlement Scheme means the Settlement Scheme (version 3) approved in Order 1 made on 20 November 2020.
9.The following terms have the meanings given to them in the Settlement Scheme:
(a)Administration Costs;
(b)Administrator;
(c)Aggregate Settlement Sum;
(d)Participating Group Member;
(e)Settlement Account;
(f)Settlement Payment; and
(g)Settlement Sum Interest.
Costs up to 31 October 2021
10.Pursuant to ss 33V and 33ZF of the Act:
(a)the Maurice Blackburn component of the Applicants’ Reasonable Costs (as defined in clause 1.1 of the Deed) in respect of the period from 1 March 2020 up to and including 31 October 2021 are approved in the amount of $889,142.49, such costs being verified as reasonable in the report of Ian Ramsey-Stewart dated 14 February 2022 and filed herein, and are to be paid by the Respondents in accordance with clause 5.1 of the Deed.
(b)Administration Costs in respect of the period up to and including 31 October 2021 be approved in the amount of $5,504,881.22, such costs being verified as reasonable in the report of Ian Ramsey-Stewart dated 14 February 2022 and filed herein, and are to be paid in accordance with order 11.
11.The Administration Costs approved by order 10(b) are to be paid as follows:
(a)first, by the Administrator applying all funds remaining in the Settlement Account to the payment of Administration Costs, with those remaining funds comprising:
(i)Settlement Sum Interest, which is to be applied to the payment of Administration Costs in accordance with clause 9.4 of the Settlement Scheme;
(ii)$41,798.23 in unpaid Settlement Payments, which amount is to be applied to the payment of Administration Costs in accordance with clauses 11.4 and 13.3(c) of the Settlement Scheme; and
(iii)the surplus of $5.22 between the Aggregate Settlement Sum and the money that was distributed to Participating Group Members by the Administrator, as a result of rounding in the calculation of Settlement Payments, as described in paragraph 6.4.5 of the Settlement Administration Report;
(b)secondly, the balance of the approved Administration Costs is to be notified by the Administrator to the Respondents’ legal representatives, and is to be paid by the Respondents in accordance with clause 9.3 of the Deed and clause 14.1 of the Settlement Scheme.
Further Costs (from 1 November 2021 onwards)
12.Within 5 business days of receiving any Further Costs Report, Maurice Blackburn will serve it on the Respondents.
13.Within 5 business days of the Further Costs Report being served, the Respondents will notify Maurice Blackburn whether or not they object to payment of any of the Further Costs.
14.If the Respondents notify Maurice Blackburn that they object to payment of any of the Further Costs, Maurice Blackburn and the Respondents are to confer and seek to resolve the Respondents’ objections and agree upon any orders that may be sought in order to do so.
15.If the Respondents notify Maurice Blackburn that they do not object to payment of any of the Further Costs:
(a)within 5 business days of receiving the notification from the Respondents, Maurice Blackburn is to:
(i)file the Further Costs Report; and
(ii)after conferring with the Respondents, provide to the chambers of Yates J a minute of proposed orders for the approval of the Further Costs; and
(b)the approval of the Further Costs is to be determined in chambers unless the Court directs otherwise.
Expert Reports
16.Pursuant to ss 37AF and 37AG(1)(a) of the Act, until further order, on the ground that the order is necessary to prevent prejudice to the proper administration of justice, appendices 4 to each of the two reports of Ian Ramsey-Stewart dated 14 February 2022 and filed herein:
(a)be treated as confidential;
(b)to the extent that such material is held by the Court in paper form, be held with the Court file in envelopes marked “Not to be opened except by leave of the Court or a Judge” or destroyed;
(c)to the extent that such material is held by the Court in electronic form, be kept in a confidential section of the relevant Court file;
(d)not be published, made available (whether electronically or otherwise) or disclosed to any other person than:
(i)the Court;
(ii)the applicants in proceedings NSD1459 of 2015, NSD1472 of 2015 and NSD1473 of 2015;
(iii)Maurice Blackburn; and
(iv)Ian Ramsey-Stewart, being a costs expert engaged by Maurice Blackburn
such permitted disclosures to be on terms that none of those persons or entities disclose the appendices or any part thereof to any person or entity other than those listed in this order.
17.As soon as practicable, Maurice Blackburn is to file a redacted copy of the Settlement Administration Report, with the redactions concealing the information that is the subject of Order 20.
Exhibits AGR-1 and AGR-2
18.Notwithstanding notation 22 made on 1 April 2020, from the date of these orders, the solicitors for the Respondents are no longer bound to retain the USB containing exhibits AGR-1 and AGR-2 to the affidavit of Alexandra Gay Rose dated 24 March 2020.
Notations Sought
19.For the purpose of Order 11(c) made on 1 April 2020, and:
(a)having regard to the Settlement Administration Report,
(b)but without prejudice to the parties’ or the Administrator’s rights to seek orders consequential to the Deed and/or Settlement Scheme or other orders ancillary to the completion of the settlement or the conclusion of the proceedings,
the administration of the settlement was completed on 21 September 2021 when the final Settlement Payment was paid to a Participating Group Member and, accordingly, the dismissal of the proceeding took effect on that date.
Confidential Settlement Documents
20.Pursuant to sections 37AF and 37AG(1)(a) of the Act, on the ground that that the order is necessary to prevent prejudice to the proper administration of justice, the Confidential Settlement Documents:
(a)be treated as confidential;
(b)to the extent that such material is held by the Court in paper form be held with the Court file in envelopes marked “Not to be opened except by leave of the Court or a Judge” or destroyed;
(c)to the extent that such material is held by the Court in electronic form, be kept in a confidential section of the relevant Court file;
(d)not be published, made available (whether electronically or otherwise) or disclosed (by publication or otherwise) to any other person than:
(i)the Court;
(ii)the applicants in proceedings NSD1459 of 2015, NSD1472 of 2015 and NSD1473 of 2015 and their legal representatives;
(iii)the applicants and the legal representatives of the applicants in proceedings NSD1307 of 2015 and NSD1308 of 2015;
(iv)the respondents in proceedings NSD1459 of 2015, NSD1472 of 2015, NSD1473 of 2015, NSD1307 of 2015 and NSD1308 of 2015 and their legal representatives; and
(v)Maurice Blackburn in its capacity as Settlement Administrator; and
(vi)Michael Potter and Boyd Harris of Axiom Forensics, being accounting experts engaged by the Settlement Administrator.
21.Pursuant to section 37AJ of the Act, Order 20 shall operate until the earlier of midnight on 1 February 2024 or further order of the Court.
AND THE COURT NOTES THAT:
22.The average net Settlement Payment (after deducting Funding Payments for Participating Group Members with that obligation) was $2,819; and
23.The total number of Participating Group Members is 43,894 and total number of Registered Affected Vehicles is 43,697.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
YATES J:
INTRODUCTION
There are a number of interlocutory applications before the Court for determination. The interlocutory applications fall into two groups. The first group concerns, principally, proceedings NSD 1459 of 2015, NSD 1472 of 2015, and NSD 1473 of 2015 (the Maurice Blackburn proceedings). The second group concerns the Maurice Blackburn proceedings and proceedings NSD 1307 of 2015 and NSD 1308 of 2015 (the Bannister Law proceedings).
The settlement of the Maurice Blackburn proceedings and the Bannister Law proceedings was approved by orders made on 1 April 2020 on the terms set out in a Deed of Release and Settlement (the Settlement Deed), a Settlement Scheme (the Settlement Scheme), and Settlement Payment Methodology described in a confidential affidavit (the Settlement Payment Methodology). The applicants’ solicitors in the Maurice Blackburn proceedings, Maurice Blackburn, were appointed as the administrator of the Settlement Scheme (the Administrator).
The orders made on 1 April 2020 included orders made pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) (the Act) which provided for the non-publication of certain evidence and material described, respectively, as the Confidential Settlement Evidence and the Confidential Material.
The then Docket Judge, Foster J, delivered comprehensive reasons for making the 1 April 2020 orders: Cantor v Audi Australia Pty Limited (No 5) [2020] FCA 637 (Cantor (No 5)).
INTERLOCUTORY APPLICATIONS (MAURICE BLACKBURN PROCEEDINGS)
The respective applicants in the Maurice Blackburn proceedings have filed interlocutory applications seeking orders pursuant to ss 33V and 33ZF of the Act which provide for approval of their legal costs for the period 1 March 2020 up to and including 31 October 2021 in the amount of $889,142.49, and for approval of the Administrator’s costs of administering the Settlement Scheme, in the amount of $5,504,881.22.
Clause 5.1 of the Settlement Deed provides that the respondents are to pay the applicants’ legal costs which are verified as reasonable by a costs expert and which are approved by the Court.
Clause 9.3 of the Settlement Deed provides that the respondents are to pay the Administrator’s reasonable costs incurred in the administration of the settlement. Clause 14.1 of the Settlement Scheme provides the basis on which these costs are to be calculated. It also provides that these costs are to be approved by the Court. The Settlement Scheme was varied by orders made on 20 November 2020, but not in ways that affect clause 14.1.
The respondents’ liability to pay the applicants’ legal costs and the Administrator’s costs is separate from, and additional to, their liability to pay the Aggregate Settlement Sum under clause 7.1 of the Settlement Deed. In other words, the costs for which approval is sought do not affect any entitlements of the Participating Group Members.
The applicants in the Maurice Blackburn proceedings also seek orders which provide a procedure for approving further legal costs and Administrator’s costs for the period from 1 November 2021.
Finally, these applicants ask the Court to note that the date of dismissal of each proceeding is 21 September 2021 and to vary a notation previously made on 1 April 2020 concerning the retention of certain exhibits.
The interlocutory applications are supported by an affidavit made on 14 February 2022 by the solicitor having conduct of the three proceedings on behalf of the applicants, Julian Klaus Schimmel; two verified expert reports, each dated 14 February 2022, which have been prepared by an independent costs expert, Ian Ramsey-Stewart; a Settlement Administration Report dated 16 December 2021; and a written outline of submissions, which has been prepared by the applicants.
The respondents in the Maurice Blackburn proceedings do not oppose the orders and notations that are sought.
In Cantor (No 5), Foster J observed at [252] – [254]:
252In considering whether to approve payment of the legal costs and disbursements ultimately verified as reasonable by Mr Ramsey-Stewart, I was obliged to keep firmly in mind the fact that the respondents had agreed to pay the applicants’ legal costs upon the basis specified in cl 5.1(a) and cl 5.1(d) of the Settlement Deed. That is, the respondents agreed to pay those costs on a solicitor/client basis (including GST). They also agreed to pay those costs at rates calculated in accordance with the applicants’ retainers with Maurice Blackburn and Bannister Law, as applicable. The costs which the respondents agreed to pay also covered the items of work specified in cl 5.1(a)(iii).
253In reality, the promise which the respondents made in respect of the payment of the applicants’ legal costs and disbursements was to pay such amount as was verified as reasonable by Mr Ramsey-Stewart upon the bases specified in cl 5.1(a) and cl 5.1(d). Mr Ramsey-Stewart was obliged to approach his task upon that basis and the respondents undertook to pay such amount as he verified as reasonable. Two of the tasks which Mr Ramsey-Stewart had to perform were to satisfy himself that the amount of work done by the lawyers was reasonable and that that work was reasonably carried out.
254Although the Court was required to approve the figures arrived at by Mr Ramsey-Stewart, in truth, the Court had no capacity to second guess whether he had performed his function appropriately and in accordance with cl 5.1. As I saw matters, I had to be satisfied that Mr Ramsey-Stewart had performed the assessment of the lawyers’ costs and disbursements which cl 5.1(a) required of him.
These observations inform the approach that I should take in relation to my consideration of the legal costs that are sought for the period 1 March 2020 up to and including 31 October 2021. The applicants submit that there is no reason why the Court should not take the same approach in considering the Administrator’s costs. I agree.
Having regard to the matters discussed in Mr Ramsey-Stewart’s reports, I am satisfied that he has performed the assessment tasks required of him by clause 5.1(a) of the Settlement Deed (legal costs), and clause 9.3 of the Settlement Deed and clause 14.1 of the Settlement Scheme (Administrator’s costs). In light of Mr Ramsey-Stewart’s analysis and opinions, I accept that the amounts sought as legal costs, and as Administrator’s costs, for the stated periods, are reasonable, and should be approved.
As to further legal costs and/or Administrator’s costs for the period from 1 November 2021, the applicants propose a process which provides for service of any further costs report on the respondents, and for consultation between the parties if any objection is raised to the amount assessed in that report. The process contemplates that, if there is no objection, the further report will be filed with a minute of proposed orders, and that, without more, the further costs will be taken to have been approved by the Court. In other words, the applicants seek a self-executing order for approval in accordance with the steps they propose.
The applicants have advanced this process on the basis that it provides a mechanism to deal efficiently with the balance of the applicants’ legal costs and any Administration costs, with a view to minimising ongoing costs and the use of the Court’s resources.
I am not prepared to make a self-executing order. Whilst it is unlikely that the Court would not approve an amount for costs which the respondents have, in effect, agreed to pay, the Court should, nonetheless, retain control of that process, including by satisfying itself that the task of assessment has been carried out in accordance with the Settlement Deed and the Settlement Scheme. This can be done by the Court considering any report that is filed (as is currently proposed) and determining the question of approval on the papers. If the Court is satisfied that the amount sought should be approved, then the process I envisage will impose no greater costs burden on the parties than the process currently proposed by the applicants.
As to the notations that are sought, I am prepared to note with respect to Order 11(c) made on 1 April 2020 that the administration of the settlement was completed on 21 September 2021. This is the date when the final Settlement Payment was paid to a Participating Group Member, as reported in the Settlement Administration Report. This, then, fixes the date of dismissal of the proceeding in accordance with Order 11(c).
Note 22 in the orders made on 1 April 2020 provides that certain exhibits in the form of Excel files stored on a USB device are to be retained by the solicitors for the respondents “until the date which is 12 months from the date upon which dismissal of this proceeding takes effect in accordance with Order 11 above”. This now means 22 September 2022.
In his affidavit, Mr Schimmel explains that one of the exhibits contains a version of data files consisting of vehicle valuation estimates that Maurice Blackburn has obtained under a commercial licence agreement for which they are liable to pay monthly fees of approximately $5,000. In view of the fact that administration of the settlement has now been completed, Maurice Blackburn wishes to terminate these commercial arrangements so that they do not have a continuing obligation to pay the monthly licence fee. However, in order to terminate those arrangements, Maurice Blackburn must first delete certain data files and any copies or modified versions of them. This cannot occur while the respondents’ lawyers are still required to retain the two exhibits. This is because those exhibits contain the material that is required to be deleted.
The applicants submit that it is appropriate that the respondents’ solicitors be relieved of their continuing retention obligation in circumstances where: the administration of the settlement has been completed and the proceedings are, essentially at an end; all appeal periods in respect of the settlement approval expired some time ago; the time period in Note 22 was set having regard to timeframes that were predicted at the time of settlement approval; and maintaining the retention period would give rise to further costs which are, in the circumstances, unnecessary and are likely to prolong the conduct of the proceedings until after September 2022 because the applicants will seek to recoup those costs.
The applicants submit that deletion of the data would not have the consequence that Maurice Blackburn would cease to have a record of the Provisional Vehicle Amounts calculated pursuant to clause 3.3 of the Settlement Scheme or of the Settlement Payments calculated pursuant to clause 10.2. In other words, all that is sought to be deleted are the underlying data inputs rather than the amounts calculated and used for the purpose of the administration of the settlement.
It is not clear to me why the respondents’ solicitors’ retention obligation in respect of these exhibits was expressed in the form of a note to the orders made on 1 April 2020 rather than an order. That said, the respondents’ solicitors accept that they are required to retain the exhibits as if bound by an order to the effect of Note 22.
I propose to accede to the applicants’ application in this regard. However, I will do so by making an order that the respondents’ solicitors are no longer bound by any obligation imposed by Note 22.
For completeness, I note that the parties in the Bannister Law proceedings agree that the note with respect to Order 11(c) (made on 1 April 2020) should also be made in those proceedings. They also agree that, in those proceedings, the respondents’ solicitors should also be relieved of their retention obligations in accordance with Note 22 made on 1 April 2020.
THE RESPONDENTS’ INTERLOCUTORY APPLICATIONS
The respective respondents in the Maurice Blackburn proceedings and the Bannister Law proceedings have filed interlocutory applications seeking orders, pursuant to s 37AF of the Act, that protect the confidentiality of certain evidence and material. The respondents contend that the orders are necessary to prevent prejudice to the proper administration of justice: s 37AG(1)(a) of the Act.
The interlocutory applications are supported by two affidavits made by the solicitor having conduct of the five proceedings on behalf of the respondents, Gregory John Williams.
The first affidavit was made on 14 February 2022. It refers to a confidential affidavit made by Mr Schimmel on 20 March 2020, an affidavit made by Mr Williams on 24 March 2020, and a confidential affidavit made by Mr Williams on 25 March 2020, all of which were previously read in support of the approval of the settlement in each proceeding. The second affidavit was made by Mr Williams on 23 February 2022. The interlocutory applications are also supported by written submissions prepared by the respondents.
The applicants in the Maurice Blackburn proceedings do not oppose the making of the orders that are sought. The applicants in the Bannister Law proceedings stated that they neither oppose, nor consent to, the making of the orders: T 22 and T 58. Counsel for the applicants in the Bannister Law proceedings, Dr Cashman, made clear that the applicants and the Group Members in those proceedings have no real interest in the non-publication orders that are sought. He said:
What we are seeking to do is to, perhaps optimistically, assist your Honour in deciding whether the applicant for the orders is able to satisfy the legal and evidentiary onus required to be satisfied before the orders could be made.
It is fair to say that, despite their stated neutral position, the applicants in the Bannister Law proceedings nevertheless advanced a substantive challenge to the making of the proposed non-publication orders in their written and oral submissions.
To advance that challenge, the applicants in the Bannister Law proceedings filed two affidavits made by Charlene Cai made 17 February 2022 and 2 March 2022. These affidavits were read without objection. Ms Cai is an employee of Bannister Law. Her affidavits were the vehicle for adducing, as evidence, two emails sent to Mr Charles Bannister, the principal of Bannister Law, by Ms Melissa Ferrari. The circumstances in which these emails were sent to Mr Bannister are not revealed in the affidavits. That omission is striking. The evidence adduced by the respondents indicates that Ms Ferrari is associated with PGMBM Law. PGMBM Law is a law firm involved in class action proceedings against certain of the respondents in the United Kingdom, the trial of which will commence in 2023.
The first email from Ms Ferrari is dated 17 February 2022. It refers to the respondents’ applications for orders pursuant to s 37AF of the Act and commences by stating that “it might be helpful if your Court was aware of” certain information, which Ms Ferrari describes as “information about the Australian settlement” and “information regarding the settlement of the German Musterfestellungsklage, the collective action test case proceeding”. The email also purports to provide information about “All the Volkswagen U.S. Federal Multi-District Litigation class action settlement agreements”.
The email is, in substance, a submission with reference to information, part of which is said to have been sourced from various websites. It includes a purported translation from German into English of a document described as the “Framework Settlement Agreement” relating to the German proceedings. It also includes an extract, in German, from the website test.de which, I was informed, is a consumer website. The extract is a matrix which shows the amount offered as compensation for certain models of affected vehicles. The amounts shown do not take into account factors such as mileage or whether a vehicle was purchased new or second hand. The email contains reference, by way of links, to other websites, but the linked material is not reproduced.
The second email from Ms Ferrari is dated 2 March 2022. This email is a response to the submissions prepared by the respondents. It also purports to give further information regarding the German proceedings and the matrix published on the test.de website. This email also purports to give information concerning the “Canadian VW class-action settlements”, based on Ms Ferrari’s understanding of those settlements. The basis for Ms Ferrari’s understanding is not stated. Once again, links are provided to other websites, but the linked material is not reproduced. This email also attaches a copy of a study commissioned by the European Parliament’s Committee of Inquiry into the Emission Measurements in the Automotive Sector, entitled “Comparative Study on the Differences between EU and US Legislation on Emissions in the Automotive Sector”, dated December 2016.
Insofar as the emails purport to give evidence of facts, they are plainly hearsay. Section 75 of the Evidence Act 1995 (Cth) (the Evidence Act) provides that, in an interlocutory proceeding, the hearsay rule (s 59 of the Evidence Act), does not apply to evidence if the party who adduces it also adduces evidence of its source. In a number of instances, the facts asserted by Ms Ferrari are not sourced.
I consider these emails to be of scant evidential value. Further, it is unclear how the information in the emails that is said to relate to the German proceeding, and the US and Canadian class action settlements, is at all relevant to the specific information that the respondents seek to protect in the present applications. All that can be said to emerge from Ms Ferrari’s emails is that there appears to have been publication of some information concerning the German proceeding, and the US and Canadian class action settlements. The respondents do not dispute that fact. However, the information that has been published is not the information (in terms of its specific content) that the respondents seek to protect here. I agree with the respondents that the starting point for my consideration of the present interlocutory applications must be the text of ss 37AF and 37AG of the Act as it applies to the particular information in respect of which the respondents seek the proposed non-publication orders. On the evidence before me, the information, for which protection is sought, has not been published.
The principles that guide the application of s 37AF are expressed in a number of cases. The principles are not in doubt. The lodestar is provided by s 37AE of the Act: in deciding whether to make a non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.
Where a non-publication order is sought to be based on the ground specified in s 37AG(1)(a)—necessary to prevent prejudice to the proper administration of justice—regard must be had to the significance of the word “necessary”.
In Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651, the High Court considered the meaning of “necessary” in the context of the now repealed s 50 of the Act (the predecessor to the regime provided in Pt VAA). At [30] – [33], the High Court said:
30As it appears in s 50, “necessary” is a strong word. Hence the point made by Bowen CJ in Australian Broadcasting Commission v Parish, that the collocation of necessity to prevent prejudice to the administration of justice and necessity to prevent prejudice to the security of the Commonwealth “suggests Parliament was not dealing with trivialities”. Further, as indicated earlier in these reasons: (a) s 50 is an example of a provision authorising the Federal Court to make orders for the exercise of its jurisdiction other than in open court as mandated by s 17(1); and (b) “the administration of justice” spoken of in s 50 is that involved in the exercise by the Federal Court of the judicial power of the Commonwealth; this is a more specific discipline than broader notions of the public interest.
31It is insufficient that the making or continuation of an order under s 50 appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some “balancing exercise”, the order appears to have one or more of those characteristics.
32If it appears to the Federal Court, on the one hand, to be necessary to make a particular order forbidding or restricting the publication of particular evidence or the name of a party or witness, in order to prevent either species of prejudice identified in s 50, or, on the other hand, that that necessity no longer supports the continuation of such an order, then the power of the Federal Court under s 50 is enlivened. The appearance of the requisite necessity (or supervening cessation of it) having been demonstrated, the court is to implement its conclusion by making or vacating the order. The expression in s 50 “may … make such order” is to be understood in this sense.
33It may tend to distract attention from the particular terms of s 50 to describe the Federal Court as embarking upon the exercise of a “discretion” when entertaining an application under s 50. Once the court has reached the requisite stage of satisfaction, it would be a misreading of s 50 to treat it as empowering the court nevertheless to refuse to make the order, or to leave in operation the now impugned order. It would, for example, be an odd construction of s 50 which supported the refusal of an order under s 50 notwithstanding that it appeared to the court to be necessary to make an order to prevent prejudice to the security of the Commonwealth.
(Footnotes omitted.)
In Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741, Edelman J considered the application of s 37AF to answers given to interrogatories. At [8] – [9], his Honour said:
8The onus of persuading the Court to make an order which restricts publication of evidence has been described as “a very heavy one” (see Computer Interchange Pty Ltd v Microsoft Corp [1999] FCA 198; (1999) 88 FCR 438, 442 [16] (Madgwick J)). The order must be necessary to prevent prejudice to the administration of justice, not merely that it is desirable to address a potential prejudice to the administration of justice. In Hogan v Australian Crime Commission (664 [30]) the joint judgment of the High Court emphasised that “‘necessary’ is a strong word”. Justice Perram has explained that “[m]ere embarrassment or annoyance will not suffice”: Australian Competition and Consumer Commission v Air New Zealand Ltd (No 12) [2013] FCA 533 [7].
9Valve asserts that there is prejudice to the proper administration of justice due to its claimed confidentiality in relation to the information in each of the categories outlined above. It is important to draw a distinction between information which is not public and information which is truly confidential. The mere fact that information relevant to a proceeding is not in the public domain will rarely be a sufficient basis to suppress its publication. The interest in confidential information can be different if the disclosure of that information could “become a vehicle for advantaging or prejudicing trade rivals”: Australian Competition & Consumer Commission v Origin Energy Electricity Ltd [2015] FCA 278 [148] (Katzmann J); Australian Competition and Consumer Commission v Cement Australia Pty Ltd (No 2) [2010] FCA 1082 [23] (Greenwood J); see also Yara Australia Pty Ltd v Burrup Holdings Limited (No 2) [2010] FCA 1304 [25] (Barker J).
In Gray v State of Victoria (Department of Education and Early Childhood Development) [2017] FCA 353, Murphy J (at [22]) observed that the concept of the administration of justice is multifaceted. His Honour noted that it incorporates the public interest in: the preservation of the confidentiality of the mediation process and the process of negotiation of the settlement of litigation; keeping people to their freely-entered bargain; and the settlement of proceedings prior to trial.
At [34], his Honour said that the fact that parties have entered into a contractual obligation to maintain confidentiality in an agreement cannot be determinative of whether a confidentiality order is appropriate. Nevertheless, in that case, his Honour was persuaded that a non-publication order should be made. One matter that informed his Honour’s decision was that the confidentiality of the terms of settlement in that case was of key importance to the settlement: at [33]. At [34], his Honour said:
34… In my view, where confidentiality is critical to achieving resolution of a case, it is open to see that refusal of a freely agreed confidentiality regime as giving rise to some prejudice to the proper administration of justice.
In that connection, Murphy J referred, with approval, to the following statement by Beech-Jones J in Cannon v Griffiths & Ors (No 2) [2015] NSWSC 1329 at [17]:
17In my view it is quite clear from reading the materials that a critical aspect of the successful resolution of the proceedings was the agreement of the parties to keep the terms of settlement confidential as far as possible. It is not necessary or appropriate to speculate as to why that is so. In my view the public interest in respecting that settlement would tend to be undermined by removing an assumption on which the settlement was arrived at, namely the confidentiality of its terms. …
It is convenient, at this point, to record that, during the course of oral submissions, the respondents considerably narrowed the scope of the orders they seek. The orders they now seek were provided, in draft, to my Chambers on 16 March 2022, following the hearing (the draft orders).
It is also convenient, at this point, to refer to relevant aspects of the existing orders that were made on 1 April 2020 pursuant to s 37AF of the Act in respect of Confidential Material. Those orders were expressed to remain in effect up to and including 31 December 2021. On 21 December 2021, at the request, and with the consent, of the parties, I extended the operation of the orders until the date on which the present interlocutory applications are determined.
The reason for referring to the existing orders is that, to a large extent, all that the respondents now seek is an extension of those orders for a relatively limited period, namely until the earlier of 1 February 2024 or further order of the Court.
To explain, the draft orders seek non-publication orders in respect of Confidential Settlement Documents. The specific documents or parts of documents are identified in the draft orders in paragraphs 1(a) – (i).
The documents or parts of documents identified in paragraphs 1(a) – (g) of the draft orders comprise information and evidence that is a subset of the information and evidence that comprise the Confidential Material that is the subject of the existing non-publication orders.
On the other hand, paragraphs 1(h) and (i) of the draft orders identify certain parts of the Settlement Administration Report lodged with the Court on 17 December 2021. Obviously, this is new material. I made an interim non-publication order in respect of this material on 15 March 2022.
I turn, firstly, to the documents or parts of documents identified in paragraphs 1(a) – (g) of the draft orders.
The settlement which the Court approved had two significant conceptual elements—the formula by which the Aggregate Settlement Sum was to be calculated (provided by Annexure 2 to the Settlement Deed), and the formula by which each Settlement Payment to a Participating Group Member was to be calculated (provided by the Settlement Payment Methodology). The Confidential Material the subject of the non-publication orders included Annexure 2 to the Settlement Deed, and the Settlement Payment Methodology.
The Confidential Material also included evidence that was adduced in support of the settlement approval application.
The Confidential Material also included Confidential Exhibit AGR-1 to the affidavit of Alexandra Gay Rose sworn 24 March 2020. This exhibit, in turn, included, amongst other information, confidential wholesale pricing data in four spreadsheets identified as AAU.500.069.0001; VGA.500.093.0001; VGA.500.093.0002; and VGA.500.093.0003 (the wholesale pricing data).
In Cantor (No 5), Foster J observed (at [147]) that the payments agreed to be made by the respondents, as part of the settlement, were conditioned on a number of matters. These matters included the applicants’ agreement to broad and stringent confidentiality provisions in favour of the respondents (clause 12 of the Settlement Deed) and an additional confidentiality promise provided directly by each Participating Group Member as a condition of receiving payment under the settlement (clause 11.2 of the Settlement Scheme, and Annexure A to the Settlement Scheme). The applicants in the Bannister Law proceedings accept that the promise given by each Participating Group Member is a binding contractual promise.
The course of the settlement negotiations is explained in Mr Schimmel’s confidential affidavit of 20 March 2020 and Mr Williams’ confidential affidavit of 25 March 2020. As those affidavits make clear, the respondents’ concerns with respect to confidentiality played a significant role in those negotiations. In giving his reasons for making the non-publication orders on 1 April 2020, his Honour concluded (at [271]) that, had confidentiality not been agreed, it is unlikely that any settlement would have been reached. His Honour reasoned that the interests of the proper administration of justice are served by encouraging the settlement of proceedings, where the settlement is, in terms, approved by the Court. Those terms included the confidentiality provisions and promises I have noted at [55] above.
His Honour also concluded (at [274]) that evidence concerning events which take place in negotiations leading to a settlement, which is subject to “without prejudice” privilege, is an accepted category of material in respect of which confidentiality should be maintained. In that regard, his Honour referred to Anastassiou J’s observations in Clime Capital Limited v UGL Pty Limited [2020] FCA 66 (Clime Capital) at [22].
At [273], his Honour accepted that commercial-in-confidence or commercially sensitive information may form a sufficient basis for the grant of a non-publication order. His Honour referred to the principles given in Clime Capital at [15]. Although, in expressing that acceptance, his Honour appears to have been directing attention to data obtained from third party sources pursuant to agreements to keep the data confidential (see [265(b)]), it is clear that his Honour also had in mind the respondents’ own confidential pricing information. The wholesale pricing data was specifically addressed in Mr Williams’ affidavit of 24 March 2020 to which his Honour made reference at [277]:
277In addition, the proposed confidentiality orders were intended to protect information described in Mr Williams’ open affidavit sworn on 24 March 2020 as “Wholesale Price Data”. That information contains details of the wholesale prices charged by the Australian respondents to dealers in their network. That information is not publicly available. The respondents submitted that it would cause harm to them and to their dealers in a number of different ways. In particular, it would provide a significant advantage to competitors of the group, particularly in relation to the pricing of their own vehicles.
It is clear that his Honour accepted that submission: see at [270].
His Honour’s acceptance of the need for non-publication orders in respect of the Confidential Material informs my own consideration of the continuing need for non-publication orders in respect of the Confidential Settlement Documents. As I have said, paragraphs 1(a) – (g) of the draft orders, which define the Confidential Settlement Documents for the purposes of the draft orders, constitute a subset of the Confidential Material.
I have been taken to aspects of the evidence that was before Foster J, including paragraphs 71 to 82 of Mr Schimmel’s confidential affidavit made 20 March 2020 and paragraphs 10 to 12 of Mr Williams’ confidential affidavit made 25 March 2020, with respect to the course of negotiations leading to the settlement. These paragraphs include information as to why non-publication orders should be made in respect of how the Aggregate Settlement Sum was calculated, and how each Settlement Payment was calculated (i.e., the Settlement Payment Methodology).
In his affidavit of 14 February 2022, Mr Williams deposes that disclosure of this information would likely give rise to prejudice to members of the VW Group involved in current litigation in at least 25 overseas jurisdictions. Mr Williams deposes that disclosure of the details of the approach to negotiations and settlement of the claims in the Australian proceedings could be used to the tactical advantage of the claimants in the overseas proceedings and thus, correspondingly, to the tactical disadvantage of the relevant members of the VW Group.
By way of example, Mr Williams deposes to the filing, in January 2022, of new claims against Volkswagen AG in proceedings in South Africa which, he says, are founded upon the settlement reached in the Australian proceedings. Mr Williams also deposes to continuing proceedings in England and Wales, the hearing of which will commence in February 2023 and likely conclude by 29 July 2023. As to those proceedings, Mr Williams deposes:
The claimants in English & Welsh group action litigation have consistently sought to pursue their claim by direct reference to the Australian Class Action Proceedings. By way of example, the “Technical Document” from the Class Action Proceedings was sought by the English claimants and used as the basis to create an agreed technical document in the group action. Similarly, the English claimants have sought disclosure of lay and expert evidence filed in the Class Action Proceedings, as well as disclosure of the documents produced by the European Respondents in the Class Action Proceedings.
Assisted by this evidence, I am persuaded, contrary to the submission advanced by the applicants in the Bannister Law proceedings, that it is likely that the claimants in the overseas proceedings against certain of the respondents or other members of the VW Group will have a keen interest in details of how the settlement of the Australian proceedings was achieved, including the particular financial basis on which the respondents were prepared to agree to a settlement with the Australian claimants. Those details remain confidential. The evidence establishes that the maintenance of that confidentiality was an important matter in achieving settlement in the first place. As I have noted, Foster J was persuaded that, had there not been an agreement as to the maintenance of that confidentiality, it is unlikely that any settlement of the Australian proceedings would have been reached.
Further, I am persuaded that there is a real likelihood that this information, if made publicly available, would advantage claimants in other pending proceedings against certain of the respondents or other members of the VW Group to the forensic disadvantage of those parties. The concerns expressed through Mr Williams’ affidavit of 14 February 2022 are supported by the obvious forensic self-interest that radiates from Ms Ferrari’s emails.
Foster J accepted that information lodged with or filed in the Court which might assist contra parties in other litigation in which the respondents are involved around the world ought to be protected from disclosure in the interests of the administration of justice: at [272] and [276]; see, too, in that regard, the related observations of Lee J in Lifeplan Australia Friendly Society Limited v S&P Global Inc [2018] FCA 379 at [20]. I agree.
Paragraphs 10 to 14 of Mr Williams’ affidavit made 24 March 2020, depose to the confidentiality of the wholesale price data and the injury that could be caused by the disclosure of that information to the public. In his affidavit of 14 February 2022, Mr Williams deposes to the ongoing confidentiality of that data and the need for its continuing protection by a non-publication order. I note that the applicants in the Bannister Law proceedings do not contest the appropriateness of non-publication orders in respect of the wholesale price data.
In light of the findings made by Foster J in Cantor (No 5), and the evidence before me, I am persuaded that non-publication orders should be made in respect of the documents or parts of documents identified in paragraphs 1(a) – (g) of the draft orders for the further limited period sought. I am satisfied that such orders are necessary to prevent prejudice to the proper administration of justice.
I turn, now, to paragraphs 1(h) – (i) of the draft orders, which concern the Settlement Administration Report.
The applicants in the Bannister Law proceedings provided a point by point challenge to the necessity to make these orders. The respondents responded to that challenge with respect to the following information.
The formula by which the Aggregate Settlement Sum was calculated and the adjustment that was made to this methodology
The formula is in section 6.1.1, and the adjustment is in footnote 33, of the Settlement Administration Report. The respondents submit that, contrary to the submissions of the Bannister Law applicants, this information is not mere arithmetic. It is a calculation in accordance with Annexure 2 of the Settlement Deed.
I have accepted that the non-publication order made on 1 April 2020 with respect to Annexure 2 of the Settlement Deed should be extended for the further limited period. Disclosure of the formula or the adjustment referred to in the Settlement Administration Deed would be a disclosure of all or part of the methodology by which the Aggregate Settlement was calculated. The respondents submit that such disclosure would be prejudicial to the interests of the respondents in the foreign proceedings in that it would allow the claimants in those proceedings to apply the integers that form part of the methodology to the circumstances of those proceedings. The respondents submit that this would afford an unfair and unwarranted tactical advantage in any attempted mediation of those proceedings. Further, as previously explained, the maintenance of confidentiality in this information was a central consideration in reaching settlement in the Australian proceedings.
I accept that the proposed non-publication orders should be made in respect of this information, for the reasons advanced by the respondents. The orders are necessary to prevent prejudice to the proper administration of justice.
The range of gross or net Settlement Payments made to Group Members
This information is given in section 6.2.6(c) of the Settlement Administration Report. In Cantor (No 5), Foster J recorded the then estimated average settlement payment and the expected range of Settlement Payments. His Honour noted that newer, more expensive vehicles will sit near the top of the range and older, less expensive vehicles will sit closer to the bottom of the range: see at [158]. The respondents submit that the disclosure of this information was necessary in order to “preserve the administration of justice” in that it was necessary to inform Group Members of likely recoveries so that they could make a decision whether or not to participate in the settlement. The respondents submit, however, that there is no necessity, now, to disclose the actual range and that the public interest in open justice will be satisfied by disclosure of the Aggregate Settlement Sum and the average Settlement Payment, as they propose.
I am not persuaded by that submission. In circumstances where the Aggregate Settlement Sum and the average Settlement Payment will be disclosed, and where the expected range has already been given, I am not persuaded that non-publication of the actual range of Settlement Payments is necessary to prevent prejudice to the proper administration of justice.
Charts that record, by vehicle manufacturer and vehicle model, the minimum, maximum, and average payments made to Participating Group Members
These charts are reproduced in section 6.2.8 of the Settlement Administration Report. This information is of a different character to that just discussed. The respondents submit that, if it is accepted that the methodology for calculating the Settlement Payments should be protected, then the application of that methodology, which yields the payments recorded, should also be protected.
I accept that submission. The information recorded is of greater specificity and granularity than that disclosed in Cantor (No 5). I am satisfied that the non-publication of this information is necessary to prevent prejudice to the proper administration of justice. I accept that such disclosure would be prejudicial to the interests of the respondents in the foreign proceedings. Its publication would afford an unfair and unwarranted tactical advantage in any attempted mediation of those proceedings. It is the product of information whose confidentiality has been maintained in circumstances where the maintenance of that confidentiality was a central consideration in reaching settlement in the Australian proceedings.
The letter of instructions to Michael Potter of Axiom Forensics asking him to confirm the steps that he took to calculate the individual Settlement Payments
The letter of instructions is Annexure C to the Settlement Administration Report. Mr Potter prepared an expert report in relation to the application for approval of the settlement. The orders made on 1 April 2020 preserved the confidentiality of that report. The respondents submit that the letter of instructions in Annexure C of the Settlement Administration Report makes express reference to Mr Potter’s earlier report and contains a detailed recitation of the instructions provided to Mr Potter in order to calculate the individual Settlement Payments to Group Members. The respondents submit that, if it is accepted that the Settlement Payment Methodology is properly the subject of confidentiality orders, then it must follow that the instructions given to Mr Potter to implement the methodology must also warrant protection.
I am not persuaded by that submission. So far as I can see, in relevant respects the letter of instructions to Mr Potter does not contain information that (a) will not be disclosed in the Settlement Administration Report in any event, or (b) has not already been disclosed in the Settlement Scheme. I am not persuaded, therefore, that non-publication of the letter of instructions is necessary to prevent prejudice to the proper administration of justice.
The report from Mr Potter (Axiom Forensics) including detailed tables setting out information in relation to Settlement Payments, broken down by vehicle manufacturer, model, and year of manufacture
The report and tables are Annexures D and E to the Settlement Administration Report. The report responds to the letter of instructions just discussed. It contains reference to information contained in Annexure 2 to the Settlement Deed and in the Settlement Payment Methodology, both of which will be subject to the proposed non-publication orders. The tables provide more detailed information of the kind discussed at [76] – [77] above. I therefore accept that this report and the tables accompanying it should also be subject to the proposed non-publication orders, on the ground that non-publication is necessary to prevent prejudice to the proper administration of justice.
Orders will be made accordingly.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Yates. Associate:
Dated: 1 April 2022
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