FEDERAL COURT OF AUSTRALIA
Coatman v Colonial First State Investments Limited [2022] FCA 1611
ORDERS
VID 1139 of 2019 BETWEEN: LESLEY COATMAN
Applicant
AND: COLONIAL FIRST STATE INVESTMENTS LIMITED
First Respondent
LINDA MAREE ELKINS
Second Respondent
ORDER MADE BY:
MURPHY J
DATE OF ORDER:
20 JUNE 2022
THE COURT ORDERS THAT:
Settlement of proceeding
1.Pursuant to s 33V of the Federal Court of Australia Act
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- Case
- [2022] FCA 1611
- Decision Date
CaseChat Overview and Summary
The legal issues at hand involved the assessment of the fairness and reasonableness of the settlement, particularly in light of the potential complexity and duration of the litigation. The applicant argued that the settlement was appropriate given the intricate nature of the case, the extensive discovery process, and the risks of an uncertain outcome. The respondent, on the other hand, contested the settlement on various grounds, including the admissibility of expert evidence and the potential for an appeal. The court also had to consider the necessity of confidentiality orders to prevent prejudice to the administration of justice.
The court approved the settlement, finding that it was fair and reasonable in the interests of the group members. The complexity and potential duration of the litigation, coupled with the risks of establishing liability, supported the approval of the settlement. The court also deemed the confidentiality orders necessary to prevent prejudice to the administration of justice, subject to specific terms regarding the disclosure of confidential material.
The court made orders varying the interim confidentiality order to extend its operation until a certain date or until an appeal was filed. It also granted leave for the filing of redacted versions of certain documents and deemed one individual to have opted out of the proceeding. The orders ensured that the terms of the settlement were implemented while maintaining the necessary confidentiality and protecting the interests of the group members.
Orders
Orders of the court
Confidentiality
1. Order 10 of the orders dated 20 June 2022 (Interim Order) be varied such that the order shall operate until 5:00 pm on 9 August 2022, unless by that time an appeal or application for leave to appeal has been filed in respect of any of orders 1 to 9 of the orders dated 20 June 2022, in which case the Interim Order shall operate until further order.
2. From 5:00 pm on 9 August 2022, unless by that time an appeal or application for leave to appeal has been filed in respect of any of orders 1 to 9 of the orders dated 20 June 2022, pursuant to ss 37AF and 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth) (the Act), on the ground that the order is necessary to prevent prejudice to the proper administration of justice and until further order, the material set out in Annexure A (Confidential Material) is not be published or disclosed without prior leave of the Court to any person other than:
(a) the Court;
(b) the Applicant;
(c) the Applicant’s legal representatives; and
(d) Maurice Blackburn Pty Limited;
with such permitted disclosures to be on terms that none of those persons or entities disclose the Confidential Material or any part of it to any person or entity other than those listed in this order.
3. The Applicant have leave to file versions of the report of the Court Appointed Costs Referee, Kerrie Rosati dated 30 May 2022 (Costs Report) and the Confidential Affidavit of Miranda Nagy dated 14 June 2022, redacted in accordance with order 2 above.
Opt Out
4. Pursuant to s 337ZF of the Act, and notwithstanding order 26 of the orders dated 26 November 2021, Ms Guiliana Tullio / Pannacchione is deemed to have opted out of the proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The in-principle settlement was reached on 24 March 2022 following a mediation, when the proceeding was set down for a four-week trial to commence the following week. The settlement was reached after the applicant’s lawyers had completed their analysis of Colonial’s voluminous discovery, after the parties had served their lay and expert evidence, and after the parties had served their respective outlines of opening submissions. That is, it was reached when the applicant’s lawyers were in a good position to make an informed assessment of the evidence to be adduced at trial, and the strengths and weaknesses of the applicant’s case. This consideration points in favour of settlement approval.The complexity and likely duration of the litigation The Confidential Opinion and the Confidential Nagy Affidavit show that the case was factually and legally complex. The claims in the proceeding raised legal issues which have not previously been dealt with in a superannuation context, and the factual matrix was dense and involved extensive lay and expert evidence. In my view it would have been difficult for the applicant to be confident of the outcome. Further, in a large, complex and strenuously defended case like this there was always the prospect of an appeal which would mean that resolution of the proceeding could take years. That weighed in favour of settlement approval. The risks of establishing liability In my view, the applicant had good prospects of establishing that Colonial owed FCES ADA Members the statutory and general law obligations that were alleged. But the question as to whether in all the circumstances pertaining to the relevant period it was, in fact, reasonably practicable for Colonial to make the ADA transfers earlier than it did was complex and strenuously contested. The applicant had the onus of establishing that Colonial did not make the ADA transfers as soon as reasonably practicable. In contending that the Court should not be persuaded as to that, Colonial had the easier path. The applicant’s case on the question was heavily reliant on independent expert evidence, technical in nature, from Mr Stephen Huppert, an actuary and independent consultant and advisor in the superannuation sector, and Mr Hayden King, an experienced executive in the superannuation and financial services industry. Colonial proposed to contend that Mr Huppert’s reports and Mr King’s reports were inadmissible in their entirety. Without expressing any view as to the merits of that contention, there must have been a risk that Colonial might succeed in its argument. Unlike the applicant, Colonial was not forced to rely upon the evidence of experts who opined as to what they would have done. It was able to rely upon the evidence of experienced executives who worked on the very ADA transfer project that was the subject of the proceeding, Ms Elkins and Ms Daniella McClellan, the Executive Manager of Program Delivery at Colonial. The gist of their evidence was that, in all the circumstances, it was not unreasonable for Colonial to have transferred the FCES ADAs when it did, due to the demands on its resources made by other regulatory requirements during the relevant period.