FEDERAL COURT OF AUSTRALIA
Elliott-Carde v McDonald’s Australia Limited [2023] FCAFC 162
File numbers: VID 726 of 2021
SAD 127 of 2022Judgment of: BEACH, LEE AND COLVIN JJ Date of judgment: 12 October 2023 Catchwords: REPRESENTATIVE PROCEEDINGS – question reserved under s 25(6) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) – whether Court has power pursuant to s 33V of FCA Act to make a “common fund order” upon settlement of proceeding – where no such order has yet been sought – anterior questions of statutory construction and jurisdiction dismissed – challenge to terms of reserved question dismissed – statutory foundation for making settlement common fund order is s 33V(2) – reserved question answered “yes”
REPRESENTATIVE PROCEEDINGS – whether representative applicant can seek order in relation to a contravention of a civil remedy provision pursuant to ss 539 and 540 of Fair Work Act 2009 (Cth) (FW Act) – whether ss 539 and 540 impliedly repeal s 33D of the FCA Act to extent of inconsistency – observations on “representative” capacity of industrial associations – consideration of matters in reach of Pt IVA scheme – no inconsistency
HIGH COURT AND FEDERAL COURT – federal jurisdiction – whether reserved question merely advisory and beyond judicial power – question whether common fund order can be made at settlement not hypothetical and ought be answered
HIGH COURT AND FEDERAL COURT – federal jurisdiction – whether making of common fund order upon settlement within judicial power of Commonwealth – creation of rights and liabilities an exercise of judicial power – consideration of funder’s returns not an impermissible foray into policy – making of settlement common fund order within judicial power
Legislation: Constitution Ch III, ss 73, 76, 77
Fair Work Act 2009 (Cth) Pt 4-1, ss 3, 12, 45, 50, 539, 540, 544, 545, 546, 550, 558B, 562, 564, 570
Fair Work (Registered Organisations) Act 2009 (Cth) ss 19, 20
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) Sch 17
Federal Court of Australia Act 1976 (Cth) Pt IVA, ss 21, 22, 23, 25, 33C, 33D, 33E, 33J, 33M, 33Q, 33R, 33S, 33V, 33X, 33Y, 33Z, 33ZA, 33ZB, 33ZE, 33ZF, 33ZG, 33ZJ
Industrial Relations Act 1988 (Cth) s 178
Judiciary Act1903 (Cth) ss 39B, 78B
Workplace Relations Act 1996 (Cth) ss 178, 718
Commonwealth Conciliation and Arbitration Act 1904 (Cth) ss 44, 119 (repealed)
Explanatory Memorandum, Fair Work Bill 2008 (Cth)
Explanatory Memorandum, Federal Court of Australia Amendment Bill 1991 (Cth)
Second Reading Speech, Federal Court of Australia Amendment Bill 1991 (Cth)
Australian Law Reform Commission, Report 134 Integrity, Fairness and Efficiency—An Inquiry into Class Action Proceedings and Third-Party Litigation Funders (2018)
Australian Law Reform Commission, Report 46 Grouped Proceedings in the Federal Court (1988)
Australian Law Reform Commission, Report 46 Summary of Report and Draft Legislation (1988)
Cases cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Alqudsi v The Queen (2016) 258 CLR 203
Asirifi-Otchere v Swann Insurance (Aust) Pty Ltd (No 3) (2020) 385 ALR 625
Attorney-General for the Commonwealth v Alinta Ltd (2008) 233 CLR 542
Australian Federation of Air Pilots v Regional Express Holdings Limited (2021) 290 FCR 239
Australian Securities and Investments Commission v Richards [2013] FCAFC 89
Blairgowrie Trading Ltd v Allco Finance Group Ltd (in liq) (No 3) (2017) 343 ALR 476
Botsman v Bolitho (2018) 57 VR 68
Commonwealth of Australia v SCI Operations Pty Ltd (1998) 192 CLR 285
Davaria Pty Limited v 7-Eleven Stores Pty Ltd (No 13) [2023] FCA 84
Davaria Pty Ltd v 7-Eleven Stores Pty Ltd (2020) 281 FCR 501
Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309
Fakhouri v Secretary, NSW Ministry of Health (2022) 316 IR 221
Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575
Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130
Firebird Global Master Fund II Ltd v Republic of Nauru (2015) 258 CLR 31
Fisher (trustee for the Tramik Super Fund Trust) v Vocus Group Limited (No 2) [2020] FCA 579
Haselhurst v Toyota Motor Corporation Australia Ltd t/as Toyota Australia; Whisson v Subaru (Aust) Pty Ltd; Kularathne v Honda Australia Pty Ltd; Brewster v BMW Australia Ltd; Bond v Nissan Motor Co (Australia) Pty Ltd; Coates v Mazda Australia Pty Ltd [2022] NSWSC 1076
In re the Judiciary Act 1903 and the Navigation Act 1912 (1921) 29 CLR 257
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51
Lenthall v Westpac Banking Corporation (No 2) (2020) 144 ACSR 573
Liverpool City Council v McGraw‑Hill Financial, Inc (now known as S&P Global Inc) [2018] FCA 1289
McKay Super Solutions Pty Ltd (Trustee) v Bellamy’s Australia Ltd (No 3) [2020] FCA 461
Mellifont v Attorney-General for the State of Queensland (1991) 173 CLR 289
Miliangos v George Frank (Textiles)Ltd [1976] AC 443
Mineralogy Pty Ltd v Western Australia (2021) 274 CLR 219
Money Max Int Pty Ltd (Trustee) v QBE Insurance Group Limited (2016) 245 FCR 191
National Australia Bank Ltd v Nautilus Insurance Pte Ltd (No 2) (2019) 377 ALR 627
Nixon v Philip Morris (Australia) Ltd (1999) 95 FCR 453
Owners of the Ship, Shin Kobe Maru v Empire Shipping Company Inc (1994) 181 CLR 404
Petersen Superannuation Fund Pty Ltd v Bank of Queensland Limited (No 3) [2018] FCA 1842
Poe v. Ullman 367 US 497 (1961)
Quirk v Suncorp Portfolio Services Ltd in its capacity as trustee for the Suncorp Master Trust (No 2) [2022] NSWSC 1457
R v Dunlop Rubber Australia Limited; Ex parte Federated Miscellaneous Workers’ Union of Australia (1957) 97 CLR 71
R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254
Re Wakim; Ex parte McNally (1999) 198 CLR 511
Regional Express Holdings Ltd v Australian Federation of Air Pilots (2016) 244 FCR 344
Sanda v PTTEP Australasia (Ashmore Cartier) Pty Ltd (Settlement Approval) [2023] FCA 143
Saraswati v The Queen (1991) 172 CLR 1
Stanwell Corporation Ltd v LCM Funding Pty Ltd (2021) 157 ACSR 401
SZGME v Minister for Immigration and Citizenship (2002) 168 FCR 487
The Queen v Joske; Ex parte Shop Distributive and Allied Employees’ Association (1976) 135 CLR 194
Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507
Transport Workers’ Union of Australia v Qantas Airways Limited (No 4) (2021) 312 IR 13
Uren v RMBL Investments Ltd(No 2) [2020] FCA 647
Webster (Trustee) v Murray Goulburn Co-Operative Co Limited (No 4) [2020] FCA 1053
Williams v Toyota Motor Corporation Australia Limited (2021) 288 FCR 282
Zantran Pty Limited v Crown Resorts Limited (No 4) [2022] FCA 500
Class Actions Practice Note (GPN-CA)
Meagher, L, Employment Class Actions: Past Use and Present Utility, [2022] No 4 UNSW Law Journal Forum
Morabito, V, Empirical perspectives on twenty-one years of funded class actions in Australia, April 2023
Division: Fair Work Division Registry: Victoria National Practice Area: Employment and Industrial Relations Number of paragraphs: 509 Date of last submissions: 19 May 2023 Date of hearing: 6 March 2023 Counsel for the applicants in VID 726 of 2021: Mr L Armstrong KC with Ms S Kelly, Dr P Turner and Mr D Murphy Solicitors for the applicants in VID 726 of 2021: Shine Lawyers Counsel for the applicant in
SAD 127 of 2022:Mr A Manos with Mr R Glavas Solicitors for the applicant in SAD 127 of 2022: Lieschke & Weatherill Counsel for the respondent in VID 726 of 2021 and second respondent in SAD 127 of 2022: Mr D Snyder Solicitors for the respondent in VID 726 of 2021 and second respondent in SAD 127 of 2022: Ashurst Australia Counsel for the Attorney-General of the Commonwealth (Intervener): Mr S Lloyd SC with Ms K Pham and Mr J Wherrett Solicitors for the Attorney-General of the Commonwealth (Intervener): Australian Government Solicitor Counsel for the Minister for Employment and Workplace Relations (Intervener): Mr D Star KC with Mr B Bromberg Solicitors for the Minister for Employment and Workplace Relations (Intervener): Australian Government Solicitor Contradictor: Mr G Donnellan with Mr B Yin ORDERS
VID 726 of 2021 BETWEEN: JADE ELLIOTT-CARDE
First Applicant
DARCY DUNLOP
Second Applicant
AND: MCDONALD’S AUSTRALIA LIMITED (ACN 008 496 928)
Respondent
SAD 127 of 2022 BETWEEN: SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES’ ASSOCIATION
Applicant
AND: BANDEC PTY LTD
First Respondent
MCDONALD’S AUSTRALIA LTD
Second Respondent
AK GAZ PTY LTD (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
BEACH, LEE AND COLVIN JJ
DATE OF ORDER:
12 OCTOBER 2023
THE COURT ORDERS THAT:
1.The question reserved under s 25(6) of the Federal Court of Australia Act 1976 (Cth) for hearing and determination by the Full Court being:
If it was just to do so, does the Court have the statutory power, pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth), to make an order distributing money paid under a settlement in the form of a “Settlement CFO”, as that term is defined in Davaria Pty Ltd v 7-Eleven Stores Pty Ltd [2020] FCAFC 183; (2020) 281 FCR 501 (at 506–507 [19], [22]–[25])?
should be answered as follows:
Yes.
2.There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BEACH J:
Before the Full Court are various issues that have been raised concerning the existence and exercise of statutory power to make a settlement common fund order (CFO) under s 33V(2) of the Federal Court of Australia Act 1976 (Cth).
The occasion for the Full Court to consider these issues has arisen because of a question reserved for our determination under s 25(6) of the FCA Act by the docket judge, Lee J in the following terms:
If it was just to do so, does the Court have the statutory power, pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth), to make an order distributing money paid under a settlement in the form of a “Settlement CFO”, as that term is defined in Davaria Pty Ltd v 7-Eleven Stores Pty Ltd [2020] FCAFC 183; (2020) 281 FCR 501 (at 506-507 [19], [22]-[25])?
His Honour has been case managing two related and in one sense competing proceedings from which the question reserved has been conceived.
The first proceeding is a representative proceeding under Part IVA of the FCA Act brought by two applicants against McDonald’s Australia Limited (the Elliott-Carde proceeding) asserting various contraventions of the Fair Work Act 2009 (Cth) and claims concerning workplace entitlements.
The first applicant was a McDonald’s employee. The second applicant was an employee of a McDonald’s franchisee. They represent group members who were McDonald’s employees or employees of McDonald’s franchisees. They have brought claims in a representative capacity for declarations, compensation and pecuniary penalties for contraventions of ss 45, 50, 550 and 558B of the FW Act; some of their claims assert a failure to comply with a 2013 enterprise agreement and a 2010 award. Orders for compensation are sought under s 545. A declaration is sought under s 550. And an order for a pecuniary penalty is sought under s 546.
The second proceeding has been brought by the Shop, Distributive and Allied Employees Association (the SDA) against McDonald’s Australia Ltd and its franchisees involving analogous claims (the SDA proceeding).
The SDA, being a registered organisation under the FW Act, has brought its proceeding asserting that it is “entitled to represent the industrial interests” of in essence the same employees the subject of the Elliott-Carde proceeding under the relevant 2013 enterprise agreement and the 2010 award. The SDA asserts similar contraventions of the FW Act and a failure to comply with the said agreement and award as asserted in the Elliott-Carde proceeding. As a registered organisation, it also seeks declarations, orders for compensation and pecuniary penalties under ss 545, 546, 547 and 547A.
In the context of both the SDA proceeding and the Elliott-Carde proceeding, there are to my mind five issues that require our determination. How such issues have arisen as between the respective sets of parties, how they have been set up for our resolution and why they require our determination now has been cogently explained in the reasons of Lee J, a draft of which I have had the advantage of considering. Let me identify these five issues, although I accept that the fourth and fifth issues could be seen as one issue with two dimensions.
The first issue concerns the operation of ss 539 and 540 of the FW Act. In unabashedly pushing the envelope, it is said by the SDA that these provisions, which permit proceedings to be brought on behalf of employees concerning workplace entitlements, exclude utilising the procedures of Part IVA of the FCA Act to pursue such claims in a representative proceeding under Part IVA. In essence it is said that s 33D of the FCA Act has been partially impliedly repealed by ss 539 and 540 of the FW Act, such that the applicants in the Elliott-Carde proceeding do not have standing to pursue a Part IVA proceeding concerning the FW Act contraventions. I would reject this argument.
The second issue, which only arises in the present context if I have rejected the SDA’s position on the first issue, is whether as a matter of statutory construction s 33V(2) of the FCA Act empowers the making of settlement CFOs. In my view, it does, and so the reserved question should be answered in the affirmative.
The third issue is whether, in a constitutional sense (ss 76 and 77 of the Constitution), there is currently a matter before the Court. There clearly is, if only because there has been a live controversy before us concerning the first and second issues. Alternatively it may be said that these issues are part of a broader matter. I have put this third issue in this part of the sequence because it is convenient to how I propose to discuss these issues. But this is not to deny its primacy above all else, including whether it is even appropriate to embark on the second issue.
The fourth issue, on the assumption of an affirmative answer to both the second and third issues, is whether the exercise of power under s 33V(2) to make a settlement CFO is in a constitutional sense the exercise of judicial power given that such an order is said to create new rights and obligations. Now even if such a characterisation of such an order is correct, that does not entail that the exercise of judicial power is not involved.
The fifth issue, on the assumption of the correctness of my views on the second to fourth issues, is whether an exercise of judicial power is involved in making a settlement CFO given that it is said that there is no objective standard to set a rate, the Court would be the market setter and policy issues would be involved. There is no substance to this point.
Let me turn to the first question concerning s 33D of the FCA Act.
Standing – the implied partial repeal of s 33D
Let me begin by setting out the SDA’s position, which was opposed by the Elliott-Carde applicants and also by the Minister for Employment and Workplace Relations who was given leave to intervene, and for that purpose identify the relevant statutory provisions.
Sections 539 and 540 of the FW Act provide:
539Applications for orders in relation to contraventions of civil remedy provisions
(1)A provision referred to in column 1 of an item in the table in subsection (2) is a civil remedy provision.
(2)For each civil remedy provision, the persons referred to in column 2 of the item may, subject to sections 540 and 544 and Subdivision B, apply to the courts referred to in column 3 of the item for orders in relation to a contravention or proposed contravention of the provision, including the maximum penalty referred to in column 4 of the item.
(table omitted)
(3)The regulations may provide that a provision set out in the regulations is a civil remedy provision.
(4)…
540Limitations on who may apply for orders etc
Employees, employers, outworkers and outworker entities
(1)The following persons may apply for an order under this Division, in relation to a contravention or proposed contravention of a civil remedy provision, only if the person is affected by the contravention, or will be affected by the proposed contravention:
(a) an employee;
(aa) a prospective employee;
(b) an employer;
(c) an outworker;
(d) an outworker entity.
Employee organisations and registered employee associations
(2)An employee organisation or a registered employee association may apply for an order under this Division, in relation to a contravention or proposed contravention of a civil remedy provision in relation to an employee, only if:
(a)the employee is affected by the contravention, or will be affected by the proposed contravention; and
(b)the organisation or association is entitled to represent the industrial interests of the employee.
(3)However, subsection (2) does not apply in relation to:
(a)items 4, 7 and 14 in the table in subsection 539(2); or
(b)a contravention or proposed contravention of:
(i) an outworker term in a modern award; or
(ii)a term in an enterprise agreement that would be an outworker term if it were included in a modern award.
(4) …
Employer organisations
(5)An employer organisation may apply for an order under this Division, in relation to a contravention or proposed contravention of a civil remedy provision, only if the organisation has a member who is affected by the contravention, or who will be affected by the proposed contravention.
Industrial associations
(6)An industrial association may apply for an order under this Division, in relation to a contravention or proposed contravention of a civil remedy provision, only if:
(a)the industrial association is affected by the contravention, or will be affected by the proposed contravention; or
(b)if the contravention is in relation to a person:
(i)the person is affected by the contravention, or will be affected by the proposed contravention; and
(ii)the industrial association is entitled to represent the industrial interests of the person.
(7)If an item in column 2 of the table in subsection 539(2) refers to an industrial association then, to avoid doubt, an employee organisation, a registered employee association or an employer organisation may apply for an order, in relation to a contravention or proposed contravention of a civil remedy provision, only if the organisation or association is entitled to apply for the order under subsection (6).
(8)…
It is convenient here to set out items 1, 2, 4, 11 and 12 of the table in s 539(2):
Standing, jurisdiction and maximum penalties
Item Column 1
Civil remedy provisionColumn 2
PersonsColumn 3
CourtsColumn 4
Maximum penaltyPart 2-1—Core provisions
1 44 (a) an employee;
(b) an employee organisation;
(c) an inspector
(a) the Federal Court;
(b) the Federal Circuit and Family Court of Australia (Division 2);
(c) an eligible State or Territory court
for a serious contravention—600 penalty units; or
otherwise—60 penalty units
2 45 (other than in relation to a contravention or proposed contravention of an outworker term) (a) an employee;
(b) an employer;
(c) an employee organisation;
(d) an employer organisation;
(e) an inspector
(a) the Federal Court;
(b) the Federal Circuit and Family Court of Australia (Division 2);
(c) an eligible State or Territory court
for a serious contravention—600 penalty units; or
otherwise—60 penalty units
…
4 50 (other than in relation to a contravention or proposed contravention of a term that would be an outworker term if it were included in a modern award) (a) an employee;
(b) an employer;
(c) an employee organisation to which the enterprise agreement concerned applies;
(d) an inspector
(a) the Federal Court;
(b) the Federal Circuit and Family Court of Australia (Division 2);
(c) an eligible State or Territory court
for a serious contravention—600 penalty units; or
otherwise—60 penalty units
…
Part 3‑1—General protections
11 340(1)
340(2)
343(1)
344
345(1)
346
348
349(1)
350(1)
350(2)
351(1)
352
353(1)
354(1)
355
357(1)
358
359
369(3)(a) a person affected by the contravention;
(b) an industrial association;
(c) an inspector
(a) the Federal Court;
(b) the Federal Circuit and Family Court of Australia (Division 2)
60 penalty units 12 378 (a) a person to whom the costs are payable;
(b) an industrial association;
(c) an inspector
(a) the Federal Court;
(b) the Federal Circuit and Family Court of Australia (Division 2)
60 penalty units …
The SDA contends that ss 539 and 540 of the FW Act impliedly repeal s 33D of the FCA Act to the extent that s 33D confers standing on current or former employees in a representative capacity to apply for an order in relation to a contravention of a civil remedy provision of the FW Act on behalf of other employees.
Now it is convenient to note at this point that ss 33C and 33D of the FCA Act provide:
33CCommencement of proceeding
(1)Subject to this Part, where:
(a)7 or more persons have claims against the same person; and
(b)the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances; and
(c)the claims of all those persons give rise to a substantial common issue of law or fact;
a proceeding may be commenced by one or more of those persons as representing some of all of them.
(2)A representative proceeding may be commenced:
(a) whether or not the relief sought:
(i)is, or includes, equitable relief;
(ii)consists of, or includes, damages; or
(iii)includes claims for damages that would require individual assessment; or
(iv)is the same for each person represented; and
(b)whether or not the proceeding:
(i)is concerned with separate contracts or transactions between the respondent in the proceeding and individual group members; or
(ii)involves separate acts or omissions of the respondent done or omitted to be done in relation to individual group members.
33DStanding
(1)A person referred to in paragraph 33C(1)(a) who has a sufficient interest to commence a proceeding on his or her own behalf against another person has a sufficient interest to commence a representative proceeding against that other person on behalf of other persons referred to in that paragraph.
(2)…
Save for the SDA’s contention, it is not in issue for present purposes that the applicants in the Elliott-Carde proceeding have satisfied ss 33C and 33D.
Now the orders sought in the Elliott-Carde proceeding for group members are orders under Part 4-1 Division 1 and in relation to contraventions of the civil penalty provisions (s 539(2)).
Now SDA says that ss 539 and 540 of the FW Act were enacted to confer rights on employees, groups of employees acting for others, and organisations to apply for orders in relation to a contravention of a civil remedy provision only if certain conditions were met.
But it is said that in this case the conditions have not been met by the applicants in the Elliott-Carde proceeding, other than in relation to the Part 4.1 Division 1 orders sought concerning the contraventions that affect Ms Elliott-Carde and Mr Dunlop personally.
Now by way of background the SDA has said that in 2009 the FW Act expanded the types of representative actions that could be brought under the FW Act. It is said that it created a new scheme in s 539 and s 540 that elaborately and exhaustively defines who can make applications for orders in relation to contraventions, the conditions those applicants must meet to do so, and limits the types of contraventions that can be the subject of those applications.
It is said that the text, context, purpose and history of ss 539 and 540 evince a legislative intention to restrict the standing of applicants identified in s 540 to apply for such orders to those who are not excluded by the newly created limitations.
It is said that this scheme impliedly repeals and is inconsistent with s 33D of the FCA Act to the extent that s 33D confers standing on employees and groups of employees to apply for an order in a representative capacity in relation to a contravention of a civil remedy provision. It is said that the implied repeal arises as the result of necessary implication.
It is said that the limits in ss 540(1), (2), (5) and (6) that allow applications “only if” certain conditions are met are inconsistent with the s 33D scheme allowing applications regardless of those limits.
Now the SDA accepts that prior to 2009, s 33D conferred standing to make representative claims in relation to contraventions of the Workplace Relations Act 1996 (Cth) and its predecessors. But it is said that in 2009 “the legislature introduced a standing provision which departed substantially from its predecessor” (Regional Express Holdings Ltd v Australian Federation of Air Pilots (2016) 244 FCR 344 at [59] per Jessup J, North and White JJ concurring).
It is said that the explanatory memorandum to the relevant Fair Work Bill identified (pp i to iii) that a major reform was that the new Act “enhances compliance with the new workplace relations system by providing a single, accessible compliance system”. It declared (at [2120]) that “Part 4-1 establishes a single compliance framework for the new workplace relations system”.
Generally, it is said that in 2009 the FW Act introduced a specific and comprehensive standing scheme that defined the types of representative actions that could be brought and provided that those actions could be brought “only if” certain conditions were met.
It is said that the text and context support the conclusion that s 540 was intended to limit the standing of employees, groups of employees and organisations to apply for Division 1 orders in relation to contraventions of civil remedy provisions to those who satisfy the limitations in s 540. It is said that the substantive right to apply for relief is conferred by s 539, subject to s 540. It does not contemplate an alternative means of enforcing awards and enterprise agreements. Section 540 is titled “limitations on who may apply for orders etc.”
It is said that s 539(2) confers a right of standing on 13 types of person to apply for orders “in relation to contraventions” of civil remedy provisions: cf s 718(1) of the WR Act. Subsections 540(1), (2), (5) and (6) impose limitations on the right of standing on 9 of those 13, including limits on the right of standing of employees and, through s 540(6), groups of employees.
It is said that the rights of standing granted to employees by ss 539(2) and items 2 and 4, read with the limits in s 540(1), confer on an employee the right to apply for a Division 1 order in relation to a contravention of an award or enterprise agreement “only if the person is affected by the contravention”. It is said that the words “only if” in this context mean “if and not otherwise”. The intent is to limit the standing of an employee to apply for an order in relation to the particular contravention that affected that particular employee, and not confer standing on an employee in relation to contraventions that only affect other employees.
It is said that the limits imposed by s 540(1) are incompatible with a concurrent s 33D right of standing.
Section 33D permits an application by an employee in relation to contraventions that do not affect the applicant employee. But it is said that an employee who has a right under ss 539 and 540 to seek orders against an employer would not have a right to seek orders against the employer for or on behalf of employees who were not employed by that employer. But it is said that if s 33D operates concurrently, the employee would be able to seek orders for those employees. In that circumstance it is said that the limit in the FW Act would thereby be circumvented by allowing that concurrent operation.
Further, it is said that a concurrent s 33D right of standing is not consistent with the words “only if” in s 540(1). And it is said that those words or similar words of limitation were not contained in the predecessor of s 540; see s 718 of the WR Act. It is said that the words “only if” in s 540(1) should not be read as “if”. And it is said that such words reflected the legislative intention to create a single compliance framework.
Now actions by employee organisations, registered employee associations, and industrial associations are all types of representative actions. The applicants in those actions are each entitled to represent the interests of a class (s 540(6)(b)(ii)).
It is said that ss 539 and 540 delineate the contraventions that can be the subject of each type of representative action; see for example the limited rights of industrial associations in s 539(2) items 11 and 12.
It is said that the creation of that scheme in 2009 was not intended to operate concurrently with s 33D and the Part IVA scheme that creates a form of representative proceeding free of those restrictions.
Now the SDA accepts that prior to the enactment of the FW Act the persons who had standing to apply for relief on “the employee side” were employees, types of registered or recognised organisations and, through s 33D, certain employees on behalf of other employees (see s 718 of the WR Act). But it is said that in 2009 the FW Act replaced the former scheme and conferred standing for the first time on an informal association consisting of a group of employees to apply for relief for some contraventions: s 539 and s 540(6). It is said that this reform was significant in two respects.
First, it created a representative action scheme available to members and non-union members unique to the FW Act.
Second, it altered how s 540 was to be construed. Now it is said that the text construed includes the defined terms in it. The words of the definition of “industrial association” from s 12 are substituted for that defined term in s 540(6) and then the substantive enactment is construed in its context. As a consequence, s 540(6) may be read as:
An association of employees … (whether formed formally or informally), a purpose of which is the protection and promotion of their interests in matters concerning their employment … may apply for an order under this Division, in relation to a contravention or proposed contravention of a civil remedy provision, only if …
The association need not have corporate status. And it can simply be a group of employees who come together informally for the identified purpose. The intention is to confer a right of standing on groups of employees in a manner similar to the standing conferred in s 33D. However, the new right is subject to conditions, and for limited purposes.
It is said that the creation of the new scheme is inconsistent with the s 33D scheme operating concurrently without those limits and for different purposes.
The right of employee organisations to bring enforcement proceedings attracts a strict regulatory environment. Registration as an employee organisation is only available to genuine associations, formed for protective purposes which are free from control by, or improper influence from, an employer; see s 19(1)(a) and (b) and s 20(1)(a) and (b) of the Fair Work (Registered Organisations) Act 2009 (Cth). These restrictions articulate a legislative concern, reflected in the definition in s 12 of industrial associations, that those who take representative enforcement actions should be limited to groups of employees formed for protective purposes. It ensures that the core function of those taking the actions is to protect employees.
It is said that permitting s 33D to have a concurrent operation allows for the prosecution of representative actions without that protection.
Now I would reject the SDA’s position.
Part IVA of the FCA Act can apply to the types of claims under the FW Act advanced in the Elliott-Carde proceeding.
Now as to the doctrine of implied repeal by later statute, it was said in Saraswati v The Queen (1991) 172 CLR 1 at 17 by Gaudron J that:
It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended both provisions should operate and that, to the extent they would otherwise overlap, one should be read as subject to the other.
And in Firebird Global Master Fund II Ltd v Republic of Nauru (2015) 258 CLR 31 at [87], French CJ and Kiefel J said:
For a court to conclude that a later statute impliedly repeals an earlier statute the court must be satisfied that the two statutes are so inconsistent that they cannot stand or live together. This will be so only if the provisions of the two statutes cannot be reconciled.
(footnote omitted)
Further, we have had our attention drawn to the decision of Beech-Jones CJ at Common Law in Fakhouri v Secretary, NSW Ministry of Health (2022) 316 IR 221 at [39] to [51]. Of course, he was dealing with different statutory provisions and so it is unproductive to draw too much from his detailed analysis. But I would endorse his statement that the notion or principle (call it what you will) of implied repeal is “a rule of last resort to be deployed if one cannot determine that one set of provisions is subject to the other”.
In the present case the text of the relevant provisions discloses no inconsistency, because the provisions are directed at different ends. Sections 539 and 540 regulate the standing of a party principal. They control standing by limiting the persons permitted to apply, and the contraventions to which their applications can relate.
But s 33D does not derogate from these controls. It does not purport to expand the classes of permitted person or contraventions beyond the limits contemplated by ss 539 and 540. Rather, its work is different and authorises a person to commence a proceeding on others’ behalf provided that the terms of s 33D(1) are met.
Moreover, Part IVA including ss 33C and 33D establish a limited form of statutory agency between the lead applicant and the group members. In one sense therefore, a class action under Part IVA involves each group member through the representative applicant applying for orders pertaining to the contraventions that the group members are “affected by”. Accordingly, there is no inconsistency with s 540, particularly s 540(1)(a). An employee has standing to pursue the relevant rights under s 540(1)(a). But s 540(1) says nothing whatsoever to deny that the employee may act in a representative capacity.
Now the SDA conceives of the relevant provisions as equivalents dealing with like subject matter. The SDA deals with the standing afforded by s 540(6) to industrial associations, and contends that the intention is to confer a right of standing on groups of employees in a manner similar to the standing conferred under s 33D.
But putting to one side for the moment that industrial associations have no standing to commence proceedings for contraventions of the National Employment Standards, enterprise agreements or awards (see s 539, items 1, 2 and 4), ss 539 and 540 do not give rise to any relationship of privity between an industrial association and the employee affected and do not found any relationship of agency. Section 540(6)(b) does not involve derivative standing. And the association does not stand in the shoes of the employees, as Lee J has explained. Employees are able to pursue for themselves the relevant statutory rights and to do so using representative mechanisms such as Part IVA as they see fit.
Accordingly, the SDA’s submissions about the limitations on standing in the relevant provisions of the FW Act go nowhere. Those provisions may be elaborate and specific, but apart from dictating who has a sufficient interest they do not otherwise interfere with representative proceedings of the kind authorised by Part IVA of the FCA Act.
Moreover, this construction is supported by the relevant purposes of each statute. Both the FW Act and Part IVA are intended to enhance access to justice. Now nothing further need be said concerning the obvious purpose of Part IVA. But let me refer to s 3 of the FW Act.
Section 3 of the FW Act provides that an object of the Act is to ensure a “guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards…” and speaks of “effective compliance mechanisms”.
Clearly, the relevant aspects of both statutory regimes concerning the standing question have a remedial purpose and should be construed broadly, not narrowly. A liberal rather than literal construction should be taken to remedial legislation.
In IW v The City of Perth (1997) 191 CLR 1, Brennan CJ and McHugh J said (at 12):
The injunction contained in s 18 of the Interpretation Act is reinforced by the rule of construction that beneficial and remedial legislation, like the Act, is to be given a liberal construction. It is to be given “a fair, large and liberal” interpretation rather than one which is “literal or technical”. Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural.
(footnotes omitted)
Gummow J said (at 39):
There is ample authority that remedial legislation, such as that found here, is to be accorded “a fair, large and liberal” interpretation rather than one which is “literal or technical”. These were the phrases used by Thorp J in Coburn v Human Rights Commission. They are of importance in this case, particularly in construing the term “services” as it appears in the statutory phrases “a person who … provides goods or services” and “by refusing to provide the other person with those goods or services” in s 66K of the Act. Nevertheless, as will appear, the legislation must be read as a whole and such a term must be construed in the context in which it appears.
(footnotes omitted)
Now if the SDA’s contentions were to be accepted, groups of employees subject to a breach of an enterprise agreement or award and who could not afford prohibitive litigation costs could do nothing except hope that the Fair Work Ombudsman or a registered organisation might take up their claims. Even then, in respect of enterprise agreement contraventions the registered organisation would need to be covered by the relevant enterprise agreement in order to do so (see s 539, item 4, column 2).
Let me now say something about matters of history which the SDA prayed in aid. A key premise of its stance was that the enactment of the FW Act comprised a major reform to the standing provisions. But this premise was exaggerated.
Of course ss 539 and 540 depart from the antecedent standing provisions. But whilst Regional Express at [59] said that “the legislature introduced a standing provision which departed substantially from its predecessor”, the Full Court was addressing two specific changes, namely, the consolidation of what was previously a miscellany of standing provisions into ss 539 and 540, and the removal of the express requirement that a person affected by a contravention be a member of an organisation for that organisation to have standing in respect of the contravention.
So, the Full Court was concerned with the construction of the phrase “entitled to represent the industrial interests” in ss 540(2) and (6). That phrase controlled the standing of organisations and industrial associations. But the Full Court did not consider the standing of employees under s 540(1)(a).
And when one correctly focuses on the present context where the SDA’s argument is that it is the FW Act’s conferral of standing on employees that brings it into conflict with Part IVA and creates the implied repeal, when that specific issue of employees’ standing is compared with its antecedents, little changed. Section 540(1)(a) controls standing for employees by limiting it to employees who are “affected by” the contravention. But this controlling device has been employed in each iteration of the predecessor legislation since 1904.
The Commonwealth Conciliation and Arbitration Act 1904 (as originally enacted) at s 44(2) provided that a breach of an order or award could be the subject of a proceeding commenced by “any member of any organisation who is affected by the breach or non-observance”. This provision was later re-ordered to s 119(2) but remained until that Act was repealed.
The Industrial Relations Act 1988 (Cth) (in force at 18 December 1996) at s 178(5)(ca) provided that a penalty for a breach of a term of an award or order may be sued for and recovered by:
(ca) a person:
(i)whose employment is, or at the time of the breach was, subject to the award; and
(ii)who is affected by the breach;
The WR Act before WorkChoices (in force at 10 June 2003) at s 178(5)(ca) similarly provided.
The WR Act (in force immediately prior to the enactment of the Fair Work reforms) at ss 718(1) and (2) relevantly provided standing for employees whose employment was subject to the Australian Fair Pay and Conditions Standard, awards and collective agreements (items 2, 3 and 4) and who were “affected by the breach of the applicable provision”. Self-evidently this continuity is not consistent with the SDA’s inconsistency thesis. The FW Act did not involve any major reform to standing for employees. The introduction of the words “only if” in ss 539 and 540 did no more than make explicit an already extant reality.
Further, the broader statutory context discloses no inconsistency. Of course, it may be accepted that the FW Act provides a comprehensive scheme of enforcement, with specific mechanisms for obtaining orders in relation to contraventions of the FW Act. But nothing in the text of the FW Act evinces an intention that the scheme is to operate to the exclusion of other mechanisms available to an applicant to enforce their rights, or for a group of applicants to collectively enforce their rights, under federal law.
First, nothing in the FW Act expressly excludes the operation of Part IVA. The lack of a provision in the FW Act expressly excluding the powers conferred on the Federal Court by Part IVA is not determinative, but this hardly assists the SDA.
Second, the FW Act as a whole demonstrates an intention to work alongside the general statutory powers conferred on the Federal Court. So, for example, s 545(1) is cast in the broadest terms and allows the Federal Court to “make any order the court considers appropriate”. Further, s 562 confers broad jurisdiction on the Federal Court in relation to any matter arising under the FW Act. Further, s 564 expressly provides that nothing in the FW Act limits the Federal Court’s powers under ss 21, 22 or 23 of the FCA Act. The explanatory memorandum (at [2213]) stated that the cognate clause was “intended to address authorities which have held that federal industrial laws exhaustively contain the remedies available to enforce those laws”.
Further, the enactment of the FW Act in 2009 was accompanied by the enactment of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth). Schedule 17 to that Act made various amendments to the FCA Act. This shows that Parliament turned its mind to the way in which the FW Act would interact with the FCA Act and made changes to the FCA Act to reflect its intention. However, Parliament did not indicate any intention to exclude representative proceedings under Part IVA from claims arising from contraventions of the FW Act.
Further, Division 3 of Part 6-1 of the FW Act prohibits certain applications under the FW Act where an application has been made in relation to the same conduct under other legislation. So, the legislature was aware of the coextensive relationship between the FW Act and other remedial legislation and the potential for conflict.
The legislature sought to impose controls where necessary but omitted any express exclusion of Part IVA. So, there was no manifestation of intention that the FW Act would not work in parallel with Part IVA. Admittedly the nature of the overlap dealt with in Division 3 of Part 6-1 is qualitatively distinct from what I am addressing. But nevertheless such provisions indirectly confirm the thesis that Part IVA was not intended not to work in parallel.
Generally, the legislature turned its mind to the Court’s powers under the FCA Act and the way in which the FW Act would interact with them. And having turned its mind to how the FW Act would work together with the powers of the Federal Court, the legislature could have but did not express in s 564 or provide in any other provision an intention to exclude the powers of the Federal Court under Part IVA.
Third, the FW Act does not provide for representative proceedings within the meaning of or akin to those in Part IVA. The standing in ss 539 and 540 of the FW Act provided to employee organisations and to a limited extent industrial associations is provided to both as party principals. Claims brought by either of them under the FW Act are not brought in a representative capacity and are to be distinguished from proceedings brought under Part IVA. Relevantly, there is no equivalent or analogue to Part IVA in the FW Act.
Fourth, a number of representative proceedings under Part IVA were brought to enforce contraventions of predecessor workplace laws in the period between the enactment of Part IVA and the commencement of the FW Act. In the many years between the commencement of Part IVA and the commencement of the FW Act, more than 30 class actions concerning subject matter arising under the WR Act were commenced (Meagher L, Employment Class Actions: Past Use and Present Utility, [2022] No 4 UNSW Law Journal Forum p 6). Some were the subject of published decisions.
The legislature may be taken to have been aware of these decisions. In that context, its decision to omit any express exclusion of Part IVA proceedings in the FW Act is significant.
In Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309, McHugh J at [81] said:
Nothing in the Act suggests that this approach is no longer applicable. The Act still defines “industrial dispute” in s 4(1) as a dispute “about matters pertaining to the relationship between employers and employees”. Division 3 agreements operate in respect of “industrial disputes” (see, eg, s 170LN). These provisions give rise to the inference that Div 2 and Div 3 agreements have a common element, namely, that for such an agreement to be certifiable, it must be about matters pertaining to the requisite relationship or to “the relationship between employers and employees” in their capacity as such. Because the Federal Parliament enacted the Act two years after the Re Alcan decision, the drafters of the Act almost certainly knew of the decision and the interpretation applied by this Court to the expression “about matters pertaining to the relationship between employers and employees”. The principle that the re-enactment of a rule after judicial consideration is to be regarded as an endorsement of its judicial interpretation has been criticised, and the principle may not apply to provisions re-enacted in “replacement” legislation. However, industrial relations is a specialised and politically sensitive field with a designated Minister and Department of State. It is no fiction to attribute to the Minister and his or her Department and, through them, the Parliament, knowledge of court decisions — or at all events decisions of this Court — dealing with that portfolio. Indeed, it would be astonishing if the Department, its officers and those advising on the drafting of the Act would have been unaware of Re Alcan.
(emphasis in original, footnote omitted).
Nothing in the text of the FW Act or in relevant extrinsic material suggests that the legislature sought to change that existing practice.
Fifth, although the explanatory memorandum stated (at [2120]) that “Part 4-1 establishes a single compliance framework for the new workplace relations system”, the explanatory memorandum is here referring to the consolidation of the miscellany of standing provisions into one place. So, although the standing and compliance provisions had been scattered throughout the predecessor legislation, the FW Act integrated them into ss 539 and 540. So, the explanatory memorandum (at [2121]) said:
having a single compliance framework ensures consistency across the Bill in terms of when particular persons can apply for orders and the types of orders that the courts can make.
The reference to a single compliance scheme is not a reference to an exclusive compliance scheme, in the sense that it indicates any intention to exclude another enactment such as Part IVA.
In my view, there is no inconsistency between Part IVA and ss 539 and 540 of the FW Act and they may operate in parallel. Sections 539 and 540 of the FW Act work harmoniously with s 33D(1) of the FCA Act, so that where a person satisfies the standing requirements of those FW Act provisions, they have a sufficient interest to commence a Part IVA proceeding on behalf of 7 or more persons who have claims against the same person.
Properly construed, ss 539 and 540 of the FW Act do not by themselves evince an intention to impliedly exclude Part IVA. Sections 539 and 540 are concerned with an applicant’s standing to enforce civil remedy provisions of the FW Act. The phrase “affected by the contravention, or will be affected by the proposed contravention” in s 540(1) is a statutory expression of ordinary common law standing principles. The phrase does not of itself evince an intention to exclude the operation of Part IVA.
So, there is no inconsistency in the text of the respective provisions when read in context, let alone an inconsistency such as to engage the rarely successfully applied doctrine of implied repeal.
In summary, I would reject the SDA’s argument that the applicants in the Elliott-Carde proceeding lack standing under s 33D of the FCA Act.
Does s 33V(2) empower the making of a settlement CFO?
The question of the existence of the relevant power to make a settlement CFO under s 33V(2) has arisen in two respects.
First, it goes to the SDA’s stay application concerning the Elliott-Carde proceeding and the relevant comparison between the competing proceedings and the different funding models proposed. Moreover, if the stay application fails, group members in the Elliott-Carde proceeding may have to choose between that proceeding and the SDA proceeding. In that regard, a consideration is the likely ultimate cost to group members depending upon the particular proceeding that they choose to participate in. Clearly the potential making of a settlement CFO in the Elliott-Carde proceeding will feed into that calculus.
Second, the question of the existence of the relevant power goes to the question of whether the proposed ss 33X and 33Y notices may or may not be misleading. The proposed notices to group members in the Elliott-Carde proceeding have foreshadowed a potential settlement CFO in the event of a successful outcome. But such a notice would be misleading if there was no statutory power to make a settlement CFO.
Now in my view such controversies as to carriage, the possible choice for group members as to which proceeding to stay in, and the content of such notices provide an appropriate vehicle for determining the question whether s 33V(2) empowers the making of a settlement CFO.
I will return to the “matter” question later. But for the moment let me concentrate on the question of whether there is statutory power under s 33V(2) to make a settlement CFO.
The relevant statutory power
Section 33V provides:
(1)A representative proceeding may not be settled or discontinued without the approval of the Court.
(2)If the Court gives such an approval, it may make such orders as are just with respect to the distribution of any money paid under a settlement or paid into the Court.
Its proper construction and ambit is to be determined by its text, context, and purpose.
Section 33V(2) employs language importing a wide judicial discretion. As it stipulates, the Court “may make such orders as are just”. And the only requirement beyond justness is that the orders be “with respect to the distribution of any money paid under a settlement or paid into the Court”. Moreover, the phrase “with respect to” is itself of wide import.
Now the broad discretion conferred by s 33V(2) is not to be read down by reference to implications or limitations not found in its express words, construed according to their natural meaning and in their proper context.
In my view, none of the terms used in s 33V(2) would, as a matter of natural meaning, be read as precluding a settlement CFO. “Distribution” refers to the function and exercise of allocation. It says or implies nothing about the identity of the recipient. Even more clearly, “paid” describes the action of the respondent. And again, it implies nothing about the ultimate recipient. Moreover, “paid” could not merely imply only payment to the applicant or group members. Such a narrow reading would preclude the Court from invoking s 33V(2) to require that settlement funds be used to pay the legal costs incurred by the class applicant; s 33ZJ would not be available on such occasions as it only addresses an award of damages and not a settlement.
It would appear uncontroversial, for example, that s 33V(2) could be used to make an order for the payment of legal fees to lawyers directly from the settlement proceeds. If that is accepted, there is no reason in principle why s 33V(2) could not similarly be used to make an order for the payment of fees to a litigation funder for their services, albeit that the fee is expressed by way of a percentage funding commission, because of the nature of the financial services provided. So what that the litigation funder may have been self-interested in providing the funding?
And as to context, s 33V(2) is a settlement specific power, which is qualitatively different from the ambulatory but limited gap-filling power in s 33ZF.
Further, as to the question of purpose, no specific guidance is obtained from the relevant extrinsic materials. The 1991 Second Reading Speech was silent as to class action financing (Hansard, House of Representatives, 14 November 1991 at 3174 to 3176). The explanatory memorandum adds nothing to the language of Part IVA as enacted. The 1988 ARLC Report 46 “Grouped Proceedings in the Federal Court” acknowledged the possibility of private third-party finance for class actions, including making reference to financing from trade unions and special interest groups (at [315]). It recommended a limited abolition of the prohibition on maintenance, but not of champerty (at [318]). The suggested draft legislation was to like effect: see ALRC Report 46 Summary of Report and Draft Legislation at [25] and draft ss 28(4) and 33. So, the relevant extrinsic materials do not assist in construing s 33V(2).
But it is not in doubt that the purpose of Part IVA is to enhance access to justice by making some small claims economically viable to litigate, and to enhance efficiency in the administration of justice by enabling the Court to deal with common questions once and for all related claims. And it is not in doubt that commercial litigation funding has been firmly established as being conducive to the achievement of the legislative objectives of Part IVA. And in that regard CFOs and funding equalisation orders (FEOs) are also conducive to such objectives.
There is a further aspect to context and purpose. If context is broadened beyond the confines of Part IVA, there is analogical guidance to be obtained from dealing with a context where a stranger by his exertions creates for the benefit of other persons a fund that would not otherwise have been available to them. It would be orthodox to construe the broad discretionary power in s 33V(2) as accommodating by adaption and adoption mechanisms developed in analogous situations arising in other areas of law.
The situations in which the question of a settlement CFO will arise are analogous to situations of maritime salvage, notwithstanding that Nettle J in BMW Australia Ltd v Brewster (2019) 269 CLR 574 at [125] sought to spike such a discussion when dealing with s 33ZF(1). Of course, we are here not concerned with s 33ZF(1) but rather s 33V(2). As with salvage, the exertions of a stranger, which here is the funder who has assumed the financial burden of the litigation commenced by the applicant, result in the obtaining of a fund or retrieval of property, which can be levied as the source of remuneration for the stranger. And like salvage, the rate of remuneration ought equitably to reflect not merely the out of pockets incurred by the stranger but also the opportunity cost of forgoing other uses for the funds expended (Brewster at [199] per Edelman J).
Further, one can conjure up an analogy from the alchemy of equity. As Lee J observed in Asirifi-Otchere v Swann Insurance (Aust) Pty Ltd (No 3) (2020) 385 ALR 625 at [39], no group member has an ascertained interest in the settlement fund created by a class action, and each requires the aid of the Court to claim their share. Each claim is at the least closely analogous to that of a beneficiary. And because he who seeks equity must do equity, it is inequitable for the person who has created or realised a valuable asset not to have their costs, expenses and fees incurred in producing the asset paid out of the very fund or property that that person’s efforts have created. This is not to say that the funder has any legal or equitable right to a share of the unfunded group members’ awards under these principles.
For present purposes I do not need to linger further on such questions, let alone approach the event horizon of restitutionary theory.
Let me now turn to Brewster as this is said, surprisingly, to be authority against the existence of statutory power to make a settlement CFO under s 33V(2).
What did Brewster actually decide?
What is clear from Brewster is that it concerned neither s 33V(2) nor settlement CFOs. The case dealt with the now described gap filling s 33ZF(1) and early CFOs to be made, so it was said, for the purpose of facilitating the interests of funders and to maintain the financial viability of proceedings.
Let me begin by re-iterating aspects of what I said in Evans v Davantage Group Pty Ltd (No 2) [2020] FCA 473 at [49] to [57], referred to in Davaria Pty Ltd v 7-Eleven Stores Pty Ltd (2020) 281 FCR 501 (Davaria FC) at [33] per Lee J, and see more generally his views at [34] to [42] with which I agree.
The plurality in Brewster, Kiefel CJ, Bell and Keane JJ, emphasised that whilst the power provided by s 33ZF(1) is wide, it is essentially a supplementary or gap-filling power. And as a supplementary source of power for Part IVA, it is not to be supposed that s 33ZF(1) was intended to meet the exigencies of litigation not adverted to at all by the provisions of Part IVA. So, s 33ZF(1) may not be “relied upon as a source of power to do work beyond that done by the specific provisions which the text and structure of the legislation show it was intended to supplement” (at [70]). Section 33ZF(1) “cannot be given a more expansive construction and a wider scope of operation than the other provisions of the scheme”. And to do so would be to use s 33ZF “as a vehicle to rewrite the scheme of the legislation” (at [70]). Rather, s 33ZF(1) has the effect of “support[ing] any interlocutory procedural order necessary to ensure that the pleaded issues are resolved justly between the parties” (at [21]). Of course, a just resolution could include a judgment (s 33Z) or an approved settlement (s 33V).
Let me say something about Nettle J’s analysis, which resonates harmoniously with that of the plurality, so that I can then synthesise the common themes of the majority. I will discuss the reasons of Gordon J later to the extent that they travel beyond the views of the plurality and Nettle J.
As I have said, the issue before the Court concerned the exercise of power under s 33ZF(1) to make a CFO at an early stage of the proceedings. The issue did not concern any settlement approval under s 33V(1) or the exercise of any power under s 33V(2).
Understandably then, Nettle J carefully expressed himself by reference to s 33ZF(1) and referred to “a common fund order (“CFO”) of the kind in issue in these matters” (at [122]) and “the kind of CFOs sought in these matters” (at [125]). His context and kind was an early CFO which he held was not empowered by s 33ZF(1) and was outside the legislative purpose; such a purpose “did not extend to addressing uncertainties on the part of litigation funders as to the financial viability of funding such proceedings” (at [126]). But contrastingly, s 33V speaks to the other end of the time spectrum where the action is for all practical purposes over and no such in futuro uncertainties or financial viability of funding questions are in play.
So, he was clearly contrasting “the broad generality of s 33ZF(1)” with “the detail and specificity of other provisions such as… s 33V…” (at [124]). But he accepted that s 33ZF(1) could be used as a supplementary power to do what was necessary or incidental to achieving the objectives of, inter alia, s 33V itself including facilitating a just outcome and finality. Of course, necessarily anterior to that is a settlement in principle that may have been achieved through mediation. In other words, exercising a power to facilitate a mediation is consonant with achieving such an objective, and within the power or purpose of s 33ZF(1).
It would seem that Nettle J considered that his analysis was consistent with the plurality’s views on the matters that I have just described. And if you take the plurality’s view together with Nettle J’s view, then you can synthesise the following themes from the combination.
First, s 33ZF(1) is a power only to be exercised in the context of how an action should proceed in order to do justice.
Second, s 33ZF(1) can be used “to support any interlocutory procedural order necessary to ensure that the pleaded issues are resolved justly between the parties” (at [21]) or “to bring the matter to a fair hearing on a just basis” (at [45] citing the words of Tamberlin J). But s 33ZF(1) is essentially supplementary or “gap-filling” notwithstanding that it is broad (at [46], [60], [69] and [70]). So, and importantly, it was in the context of those observations that it was said that s 33ZF(1) could be used to “ensure that the proceeding is brought fairly and effectively to a just outcome” (at [47], [50], [51] and [54]). And the concept of just outcome was not to be decontextualised and read up to be looked at from the perspective only of the applicant and group members.
But clearly, none of this says anything about the proper construction and ambit of s 33V(2) let alone the power to make settlement CFOs under s 33V(2).
Now Gordon J in Brewster did not see s 33V(2) as “envisag[ing] a Court making orders with respect to the economics of a proceeding by ensuring that a litigation funder obtains a particular return on funds invested” (at [141]). But that observation does not deny that the Court could find that it is just to make a settlement CFO under s 33V(2). A settlement CFO is made only after such funding has been provided and drawn down. It is not concerned with the economics of a proceeding as such. And the words that follow “by ensuring …” are subordinate to the preceding phrase. The lens is what is “just”, but the after the event output of course has economic consequences. Further, Gordon J’s view is obiter dicta and expressed without the benefit of argument on the ambit and operation of s 33V. And reasons for judgment must be read secundum subjectam materiam.
I should say for completeness that there is another way of reading what her Honour said (at [141]) which may bring her within the tent so to speak, that is, in conformity with the plurality and Nettle J where s 33V(2) was irrelevant to the controversy being adjudicated upon. If you read [141] in context, structurally it appears in a broader section which is just describing the legislative scheme ([136] to [145]). In other words, in this part of her Honour’s reasons there is no attempt to chart the metes and bounds of s 33V; and she does not undertake that task later, unsurprisingly, because it was not in play. Further, in the immediately preceding [140], her Honour discusses a viability threshold and the like, which is all concerned with the context of an early CFO. Now all of this may suggest that the last sentence of [141] is not addressing s 33V(2) and settlement CFOs, but merely pointing out that s 33V(2) has nothing to do with early CFOs and viability thresholds concerning “the economics of a proceeding…”. And if that be so, then there is no member of that Court who has poured cold water on the idea that s 33V(2) empowers the making of a settlement CFO. Of course though, the plurality and Gordon J have telegraphed their preference for FEOs over CFOs, although to do so does not deny the existence of power to make a settlement CFO under s 33V(2). Rather, such a preference could only at most go to the exercise of power under s 33V(2). Let me return to s 33V(2).
Section 33V(2) is not a “gap-filling” power. Rather, it is precisely the kind of specific power to make orders as to the distribution of claim proceeds which the plurality and Nettle J in Brewster held that s 33ZF(1) did not provide. Indeed, the plurality referred to the making of orders distributing the proceeds as the “appropriate occasion for orders for meeting and sharing the cost burden of the litigation because the value of the litigation and the extent of the burden will have been rendered certain” (at [68]).
Further, there is no incongruity with the rest of Part IVA in reading s 33V(2) as I have indicated. So, whilst s 33Z(2) and (4) and s 33ZA, which confer powers on the Court to make orders with respect to damages, specifically refer to the distribution of money to group members, s 33V(2) is not limited in that way. That is a contextual reason in favour of reading s 33V(2) as including a power to make orders that allow for money to be distributed to other persons, relevantly including the funder but also to legal representatives. The omission of the words “to group members” in s 33V(2) is not insignificant.
Before moving on I should make six other points.
First, one should not confuse the question of the ambit of the power with the question of purpose. On any view, s 33ZF(1) is broad. Now to use s 33ZF(1) to make a CFO for the dominant purpose of preferencing the interests of a funder to ensure the financial viability of a proceeding is, as Brewster explains, impermissible. But less obvious is why it would be impermissible to make an early CFO where you have two competing open class proceedings, where both are financially viable absent a CFO in any event, say where there are a substantial number of signed up group members in both, but where the CFO is being used to select at necessarily an early stage between the two competing proceedings with the winning action having pitched for the lowest CFO, with all else being equal. It is difficult to see how that would not be “appropriate or necessary to ensure that justice is done” (s 33ZF(1)) in both of the proceedings, with the exercise of power having a permissible purpose. In such a scenario an early CFO would not be being made to ensure the financial viability of either or both proceedings or to advance the interests of the funders.
The CFO made in one proceeding could be seen as the price extracted as the quid pro quo to enable that proceeding to go forward as the one open class proceeding. Control of the commission rate would be ceded to the Court as the price of success. Utilising that mechanism, one could in essence drive down the commission rates of the funder in that proceeding, to the advantage of the group members and to the disadvantage of the funder. In that context then, the CFO would be principally of advantage to the group members in that proceeding.
Second, it is not explained why, on the assumption that s 33ZF(1) is a gap-filler as the plurality characterised it, it could not also be used as an adjunct to a likely or anticipated future use of s 33V(2).
In other words, if the parties shortly after completing discovery wanted to mediate their dispute and the applicant and group members wanted some clarity as to what might be available in terms of the net potential settlement proceeds after deduction for all expenses including funding expenses, could a CFO be made at that time utilising s 33ZF(1) to facilitate a later exercise of power under s 33V(2)? It is common for claimants to want to have an idea of what they will ultimately pocket net of expenses before they reach an agreement with a respondent on the gross settlement sum figure. Such a CFO could facilitate both the anticipated mediation and the settlement and anticipate the likely exercise of power under s 33V(2). None of this would, of course, have anything to do with threshold questions as to the financial viability of the proceeding or the empty shibboleth of somehow preferencing the interests of funders. Anyway, judges for the moment have treated the use of s 33ZF(1) in this way as being chilled by Brewster and accordingly have dealt with the matter in other practical ways by indicating informally at case management hearings that they may be favourably disposed to making a settlement CFO in due course if the occasion arises. And so doing, one can only wonder what the practical difference is between so indicating on the one hand or making an interlocutory CFO at that time on the other hand, which can be later varied in the known world of an exercise of power under s 33V(2). Anyway, because of Brewster, the latter option is out.
Third, s 23 of the FCA Act can also be invoked as a source of power for settlement CFOs, and perhaps even early CFOs, although judges of our Court post-Brewster have refrained from using it for early CFOs.
Section 23 is broader than s 33ZF(1). Moreover, s 33ZG(b) confirms that s 33ZF(1) does not affect the amplitude of s 23; Part IVA is neither an exclusive nor an exhaustive code concerning representative proceedings. In Money Max Int Pty Ltd v QBE Insurance Group Ltd (2016) 245 FCR 191, it was said at [168] per Murphy, Gleeson and Beach JJ that s 23 was also an available head of power. As best as I can tell, there is no other authority which grapples with or would deny that reality.
Moreover, the “gap-filler” reading down by the plurality in Brewster of the language of s 33ZF(1) does not entail any reading down of the plenary power of s 23. Indeed, the more s 33ZF is read narrowly, the greater the amplitude for s 23 to operate. It is counter-intuitive to suggest that a narrower reading of one general power can carry with it by necessary implication a consonant reading down of an even broader power, particularly in the face of s 33ZG(b).
Further, and by parity of reasoning, s 23 can also be used to make a settlement CFO, particularly if it be suggested that s 33V(2) cannot be used.
Fourth, as to purpose, s 33V reflects the court’s important supervisory role in respect of settlements of representative proceedings for the protection of group members. That role extends to the supervision of legal costs and funding charges. It is consistent with that supervisory role for the Court, in considering what orders are just, to assess the remuneration that should be provided to a litigation funder, without which compensation may not have been payable to group members at all, having regard to the interests of the group members and the amount of compensation that they would ultimately receive.
Fifth, it has been said that a settlement CFO creates a relationship between a funder and an unfunded group member. But I am not convinced.
The first way to look at it is that a settlement CFO is an order made by the Court under s 33V(2) requiring the deduction from a settlement fund from an otherwise entitlement of an unfunded group member which is then ordered to be paid to the funder. There is no consensual or other relationship between the funder and the unfunded group member. Rather, a third party, namely, the Court is imposing its own order which affects both the funder and the unfunded group member in a complementary way. A is directing B and C. But for A to do so does not entail any relationship between B and C. But even this construct is inaccurate as there is no prior “otherwise entitlement” of the group member; such an entitlement only arises after all deductions including costs are made as allocated in accordance with any s 33V(2) order.
The second way to look at the settlement CFO is that it is making an order against the fund (in rem), rather than the parties or group members.
But in any event if this relationship point were good, you could say something analogous about an FEO. That could be seen as creating a relationship between a funded group member and an unfunded group member where none existed; they are both strangers to each other.
Generally I do not see this relationship point taking the matter far. And in any event it distracts from the real question, which is the ambit of the statutory power under s 33V(2).
Sixth, the fact that other possible mechanisms may be available to address the problem of “free-riding” does not entail that a settlement CFO could never be considered just in a particular case.
Let me turn now more directly to the question of FEOs as it was suggested that the so-called spirit of Brewster requires the Court to prefer FEOs over CFOs and that somehow if an FEO can be made then the Court ought not make a CFO. But what if the Court cannot make an FEO because group members have not been signed up? What then? Can the Court make a settlement CFO? Brewster does not negate such a possibility. But in any event, the Court under s 33V(2) is required to do what is “just” and to act upon the basis of evidence before it, rather than to simply resonate with any vibe emanating from preferences expressed for particular funding expense allocation models.
Funding equalisation orders
Brewster does not contain majority considered obita dicta justifying the proposition that FEOs are to be preferred as an exercise of power on settlement under s 33V(2), and that no settlement CFO could be made.
Further, to the extent that Cantor v Audi Australia Pty Ltd (No 5) [2020] FCA 637, which is an outlier as Lee J has demonstrated, suggested otherwise it may be put to one side. In any event Foster J’s expression of views were obiter as he himself recognised (at [429]). And as for O’Callaghan J’s decision in Davaria Pty Ltd v 7-Eleven Stores Pty Ltd (No 13) [2023] FCA 84, which relied upon Cantor, it is under appeal concerning the orders ultimately made. It rises or falls with Cantor and I do not propose to say anything further.
Let me turn more directly to the discussion in Brewster concerning FEOs.
First, it would seem that these are said to have the additional advantage that they do not impose, as CFOs are said to, an additional cost on the unfunded group members (Brewster at [88] per the plurality). But what does any of that really mean?
An FEO includes some deduction from the moneys otherwise paid to unfunded group members. So there is a cost. But what then does it mean to say “additional cost”? In some scenarios, the arithmetic is such that an FEO will impose more of a cost on an unfunded group member than a CFO, as was discussed in Money Max. I will return to this in a moment.
Second, it is said that it is of advantage that FEOs take as their starting point the actual costs incurred in funding the litigation (Brewster at [88] per the plurality). But if FEOs, in contrast to CFOs, involve unnecessary, expensive and inefficient book-building as they do, then the “actual costs” incurred have been unnecessarily increased; of course there are also hidden and indirect costs from any delay resulting from book-building. Book-building is necessarily incentivised by FEOs because, predictably, a funder has an incentive to maximise its contractual entitlements against the largest pool of group members that it can sign up.
I noted the fiasco associated with incentivising book-building, as the distortion of preferencing FEOs appears to do, in Stanwell Corporation Ltd v LCM Funding Pty Ltd (2021) 157 ACSR 401 at [6] where the class included more than a million electricity consumers in Queensland and where I said:
[T]he proceeding dispels the myth of the so called advantages of book building in a case of this type. The book building here has resulted in an unnecessary, costly and inefficient delay of seven months in order that over 50,000 retail customers be separately signed up to individual funding agreements. There is little justification for such a barrier to entry so to speak or justice.
So, you have the perceived virtue of taking as the starting point the “actual costs”, but the real vice of using FEOs which has resulted in an unnecessary inflation of the “actual costs”. The so-called advantage of the starting point being “actual costs” is illusory, where the base has been unnecessarily inflated to the disadvantage and expense of all group members under an FEO.
Third, Brewster did not consider let alone analyse how an FEO could work where only the representative applicant had signed a funding agreement or where only a small number could do so because the majority of the class were unascertainable within a reasonable time frame as to their identity or where the nature of the characteristics of most members of the class due to their education or other socio-economic factors was such that it was not feasible to expect them to understand let alone sign up to relatively complex funding agreements.
Fourth, if FEOs only are available, it is also conducive to closed classes. But the very philosophy underpinning Part IVA and the opt-out model is open classes, not closed classes. In other words, those who are promoters of FEOs, which they assert is in keeping with the Part IVA regime, are counter-intuitively pushing the antithesis of what Part IVA was intended to operate on, namely, open classes.
A Settlement CFO, if ordered, would form part of an approval. Its justification would be found in the circumstances as they pertained at the time of the settlement. It would be the outcome of an evaluative process undertaken in the interests of all group members and the interests as between them. It would be informed by the protective role that the Court undertakes in exercising the approval jurisdiction. It would be a term of settlement that may be proposed on the basis that it would be a fair mechanism by which to remunerate the funder not on the basis that there had been some earlier order imposing those terms on all group members.
Significantly, the reasons of the plurality expose a concern with an approach by which unfunded group members were to be required to agree to terms as to a percentage which was justified on the basis that it had been agreed to by the representative applicant (and any funded members) at the outset of the proceedings. Their Honours reasoned at [87] that 'there is no reason why the amount taken from unfunded group members' awards should be directed to the litigation funder, much less that an order to that effect should be made at the outset of the proceeding rather than on the occasion contemplated by s 33ZJ(2) [of the Federal Court of Australia Act].'
Section 33ZJ(2) is directed to an instance where the Court has made an award of damages in a representative proceeding. It provides that the representative party may apply for any costs that are not recovered from the respondent to be recovered out of any damages awarded. There is further provision in s 33ZJ(3) that the Court may also make any other order that it thinks just. As has been explained, in many instances a settlement will be proposed in circumstances where the nature of the representative proceedings is such that any damages award may be confined to the claim of the representative applicant with individual awards of damages being unable to be determined on a common basis.
The plurality then stated: 'Unfunded group members have no contractual or other relationship with the funder. Nor have they any liability to the funder. The funder has no right to that money under contract or under equitable principles': at [87].
The Court then went on to refer to a preference for a FEO as the solution to the problem of 'free riding'. It was said to be a better way to achieve the equitable spreading of cost because it takes as its starting point 'the actual cost incurred in funding the litigation': at [88]. The plurality accepted that 'it must be accepted that the burden of the amounts that funded group members have agreed to pay to the funder under their agreements with the funder must be distributed fairly': at [88]. The view was expressed that a FEO was apt to equitably distribute those amounts 'whereas a CFO seeks to impose an additional cost by imposing new obligations on the unfunded group members'.
It may be observed that these characteristics of a CFO do not pertain to a Settlement CFO. It need not be proposed by reference to agreed funding terms. It may be proposed on the basis that it is a fair and reasonable settlement term in circumstances where the funder has met the costs and disbursements of the representative proceedings and taken on the risks described earlier in these reasons, for the benefit of all group members as reflected in the terms of settlement that are presented for approval. In approving the settlement, the Court is not being asked to make a Settlement CFO because it reflects the terms agreed with funded members (although that may be part of the circumstances that are said to support the reasonableness of the proposed order - namely that many group members were willing to enter into those terms). Rather, the Court is exercising its protective jurisdiction which includes the scrutiny of the reasonableness of any amounts to be paid to the funder.
The plurality did briefly address the position where a settlement is reached. Their Honours did so without adverting to the terms of s 33V. After referring to the availability of FEO order where a settlement is reached, their Honours reasoned as follows at [89]:
A settlement must be approved by the court, and, in approving a settlement, the court must be satisfied that it is 'fair and reasonable to all group members'. A settlement that allows some group members to ride for free would not be fair and reasonable to the other group members.
(footnotes omitted)
However, the reasons of the plurality did not address the nature and significance of the protective aspects of the Court's approval jurisdiction that is invoked by s 33V(1) and applied to presentative proceedings. As has been explained, in the exercise of that jurisdiction, the Court may approve a settlement on the basis of the payment of a percentage of the settlement monies to a third-party funder which is a different percentage to that agreed by the third-party funder with the representative applicant (and any funded members). That is to say, the vice (in the view of the plurality) of the type of order that was under consideration in BMW Australia Ltd v Brewster whereby the terms of the CFO to be made early on in the representative proceedings is sought to be justified by reference to the terms agreed by funded members (and not by unfunded members) does not pertain. Rather, in the case of the Court considering whether to approve a Settlement CFO as part of a settlement of representative proceedings as required s 33V(1), the Court is guided by the general law principles that apply to the exercise of its approval jurisdiction.
At the time of considering whether to approve a settlement, it is quite possible that the Court may view with circumspection a settlement which contemplates the payment to a funder of a proportionate share of money to be paid under the settlement based solely upon the fact that it reflects the terms agreed with a small group of funded members before the representative proceedings were commenced (or early on in the conduct of those proceedings). However, the position may be different where a considerable number of group members agreed to those terms or where the terms may be demonstrated by evidence to conform with prevailing market terms upon which those in the business of providing funding are willing to do so or where the Court is persuaded that the value of the costs met and the risks borne by the funder for the benefit of all group members enable the Court to conclude that the proportionate share is just. Whether or not such an approach is possible and appropriate will depend upon the Court's assessment at the time of approving the settlement. In making that assessment, the Court will also consider whether approval of the settlement might not be given on the basis that a FEO was more appropriate in all the circumstances.
In those circumstances, I agree with Moshinsky J that the observations by the plurality in BMW Australia Ltd v Brewster 'clearly favour the making of a funding equalisation order over a common fund order (implicitly, at the conclusion of a proceeding)' and that their Honours do not thereby express a concluded view that there is no power under s 33V to make a common fund order at the time of approving a settlement as required by s 33V(1): Fisher (trustee for the Tramik Super Fund Trust) v Vocus Group Limited (No 2) at [72].
I can see no reason why the inclusion of a term of the proposed settlement that could be described as a CFO in and of itself would be a reason why a settlement must not be approved by the Court in the exercise of its approval jurisdiction. Further, given the evident purpose of s 33V derived from the context of Part IVA and an understanding of the nature of representative proceedings, I see no reason to conclude that a Settlement CFO is somehow such that it could not be 'just' in any and all cases. If that is so, there is otherwise no foothold in the language of s 33V(2) for concluding that a Settlement CFO is a kind of order that falls outside the jurisdiction conferred by s 33V(2).
As to the reasons by the other members of the majority in BMW Australia Ltd v Brewster, Gordon J said at [141]:
A representative proceeding may not be settled or discontinued without the approval of the Court. If the Court gives approval, s 33V(2) confers power on the Court to 'make such orders as are just with respect to the distribution of any money paid under a settlement or paid into the Court'. But that provision does not envisage a Court making orders with respect to the economics of a proceeding by ensuring that a litigation funder obtains a particular return on funds invested.
(footnote omitted)
The above statement is not concerned with whether it would be within the terms of s 33V(2) to make an order distributing to a funder a proportionate share of money to be paid under an approved settlement (or whether a settlement that included such a term could be approved). Rather, it is concerned with the basis upon which such an approval might be justified. It emphasises that the Court's approval jurisdiction is not to be exercised in the interests of the funder. There is nothing in that observation that means that a Settlement CFO cannot be made under s 33V(2).
Other statements by Gordon J to the effect that the Court does not have power to make a CFO reflect her Honour's usage of that term as explained at [135]:
A common fund order, in general terms, is a set of court orders, usually made early in the life of an open class proceeding, which impose on the representative party, and all group members, an obligation to pay a litigation funder a pro rata share of the legal costs incurred and a funding commission at a specified rate from the common fund of any settlement or judgment in their favour. Such an order obliges all group members, including unfunded group members, to contribute to the legal costs and to pay the litigation funder a commission. For the reasons that follow, Courts do not have the power to make a common fund order.
(footnote omitted, emphasis in original)
Significantly, her Honour described a CFO as an order usually made early on in representative proceedings being pursued on an open class basis which imposes an obligation in circumstances that do not refer to the approval of a settlement: at [135].
The reasons of Nettle J focus upon the terms of s 33ZF and the absence of an intention in enacting Part IVA to address the commercial interests that entrepreneurial litigation funders may have in addressing uncertainties on their part as to the financial viability of funding representative proceedings: at [126]. They expressly differentiate s 33ZF(1) from the detail and specificity of s 33V: at [125].
Finally, as Lee J has explained, the proposition that s 33V(2) does not extend to making a Settlement CFO is contrary to a considerable body of jurisprudence in this and other Courts.
For those reasons, I agree with Lee J that s 33V confers a discretionary power to approve a settlement that is a just resolution of the representative proceeding and that a Settlement CFO is not a type of order that is outside the conception of a just order that could be made under s 33V(2).
Respectfully, it follows that the reasoning to contrary effect by O'Callaghan J in Davaria Pty Limited v 7-Eleven Stores Pty Ltd (No 13) [2023] FCA 84 at [179]-[191] should not be adopted in answering the reserved question.
Issue as to the terms of the reserved question
I agreed that the reserved question should not be amended to include the question whether there was equitable power to make a Settlement CFO. I did so because of the difficulties alluded to by Lee J when it comes to expressing a view as to the absence of equities without understanding the particular factual circumstances. That said, equity has a long history of adjusting rights to assets or funds to allow fair recompense to those parties whose action has preserved or protected particular assets or funds. They have included instances where court and other costs have been incurred in bringing proceedings to establish an entitlement to assets or funds.
Issue as to whether the reserved question is hypothetical
For the reasons given by Lee J I agree that it is appropriate to answer the reserved question.
Form of order
For the reasons I have given, I agree with Lee J that the reserved question should be answered in the affirmative. However, as I have indicated, I would answer the question in the following way: 'If the Court has approved the terms of settlement or discontinuance in the exercise of its approval jurisdiction, yes'.
I agree that there should be no order as to costs.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin. Associate:
Dated: 12 October 2023
SCHEDULE OF PARTIES
SAD 127 of 2022 Respondents
Fourth Respondent:
A.F. SPINKS PTY LTD
Fifth Respondent:
AARROD PTY LTD
Seventh Respondent:
AGOSTINO GROUP HOLDINGS PTY LTD
Eighth Respondent:
ALERUN PTY LTD
Tenth Respondent:
ALJAWIDA PTY LTD
Eleventh Respondent:
ALLEECO PTY LTD
Twelfth Respondent:
ALMIC HOLDINGS PTY LTD
Thirteenth Respondent:
ALVARO RESTAURANTS PTY LTD
Fourteenth Respondent:
ARN TAS INVESTMENTS PTY LTD
Fifteenth Respondent:
ANJOHSCO PTY LTD
Sixteenth Respondent:
ANMASAL PTY LTD
Seventeenth Respondent:
ARCHIE ENTERPRISES PTY LTD
Eighteenth Respondent:
ARDEEN PTY LTD
Nineteenth Respondent:
ASHDABS PTY LTD
Twentieth Respondent:
AUZCAN PTY LTD
Twenty First Respondent:
BL FITZGERALD PTY LTD
Twenty Second Respondent:
BAKSTON PTY LTD
Twenty Third Respondent:
BALLAVARRA PTY LTD
Twenty Fourth Respondent:
BALLENA PTY LTD
Twenty Fifth Respondent:
BARTASE PTY LTD
Twenty Sixth Respondent:
BASILE ENTERPRISES PTY LTD
Twenty Seventh Respondent:
BDZ GROUP PTY LTD
Twenty Eighth Respondent:
BELVIEW ENTERPRISES PTY LTD
Twenty Ninth Respondent:
BERGER PTY LTD
Thirtieth Respondent:
BERWICK ENTERPRISES PTY LTD
Thirty First Respondent:
BERWICK SOUTH ENTERPRISES PTY LTD
Thirty Second Respondent:
BILJAC PTY LTD
Thirty Third Respondent:
BK DUNCAN PTY LTD
Thirty Fourth Respondent:
BLACKSTEN PTY LTD
Thirty Fifth Respondent:
BLENIN PTY LTD
Thirty Sixth Respondent:
BRATE PTY LTD
Thirty Seventh Respondent:
BRAYCON HOLDINGS PTY LTD
Thirty Eighth Respondent:
BRODIE RESTAURANTS PTY LTD
Thirty Ninth Respondent:
CABLESCO PTY LTD
Fortieth Respondent:
CADMUN PTY LTD
Forty First Respondent:
CAHOW PTY LTD
Forty Second Respondent:
CAISER PTY LTD
Forty Third Respondent:
CAPALOY PTY LTD
Forty Fourth Respondent:
CARACAL INVESTMENTS PTY LTD
Forty Fifth Respondent:
CEDALLA PTY LTD
Forty Sixth Respondent:
CELLET PTY LTD
Forty Seventh Respondent:
CENTHEAD PTY LTD
Forty Eighth Respondent:
CERTIFY PTY LTD
Forty Ninth Respondent:
CHASMIC PTY LTD
Fiftieth Respondent:
CHIAPELLO HOLDINGS PTY LTD
Fifty First Respondent:
CIRCLES OF GOLD PTY LTD
Fifty Second Respondent:
CISKE GROUP PTY LTD
Fifty Third Respondent:
CLEMANDOT PTY LTD
Fifty Fourth Respondent:
COLEDON PTY LTD
Fifty Sixth Respondent:
CORCORAN FOODS PTY LTD
Fifty Seventh Respondent:
COYNE ENTERPRISES PTY LTD
Fifty Eighth Respondent:
CRAAMA PTY LTD
Fifty Ninth Respondent:
CRANBOURNE NORTH ENTERPRISES PTY LTD
Sixtieth Respondent:
CRILLION PTY LTD
Sixty First Respondent:
DADAK PTY LTD
Sixty Second Respondent:
DASTIM PTY LTD
Sixty Third Respondent:
DDSN PTY LTD
Sixty Fourth Respondent:
DECORUS VITA PTY LTD
Sixty Fifth Respondent:
DELICIOUS DOUGH PTY LTD
Sixty Sixth Respondent:
DEMI PTY LTD
Sixty Seventh Respondent:
DENRICH PTY LTD
Sixty Eighth Respondent:
DIRECTWEST PTY LTD
Sixty Ninth Respondent:
EASTSIDE QSR PTY LTD
Seventieth Respondent:
EBURG PTY LTD
Seventy First Respondent:
EDEN CORPORATION PTY LTD
Seventy Second Respondent:
EMPAB PTY LTD
Seventy Third Respondent:
EMQUEST PTY LTD
Seventy Fourth Respondent:
EPREMA HOLDINGS PTY LTD
Seventy Fifth Respondent:
EVANS ARCHES PTY LTD
Seventy Sixth Respondent:
EVENLITE PTY LTD
Seventy Seventh Respondent:
EYRIE HOLDINGS PTY LTD
Seventy Eighth Respondent:
F & F LIEW PTY LTD
Seventy Ninth Respondent:
F & J MADON PTY LTD
Eightieth Respondent:
FAIRLIGHT RESTAURANTS PTY LTD
Eighty First Respondent:
FAITH GROUP PTY LTD
Eighty Second Respondent:
FAMILY CHIPS PTY LTD
Eighty Third Respondent:
FAVOTTO FAMILY RESTAURANTS PTY LTD
Eighty Fourth Respondent:
FISCHFOR4INVESTMENTS PTY LTD
Eighty Fifth Respondent:
FISHER GRACE PTY LTD
Eighty Sixth Respondent:
FOUR REDS PTY LTD
Eighty Seventh Respondent:
FOXHOW PTY LTD
Eighty Eighth Respondent:
FREELAKE PTY LTD
Eighty Ninth Respondent:
FRYDAYS PTY LTD
Ninetieth Respondent:
FULLMERE PTY LTD
Ninety First Respondent:
FURTHER PROOF PTY LTD
Ninety Second Respondent:
GAJJH UNITED PTY LIMITED
Ninety Third Respondent:
GAILERO PTY LTD
Ninety Fifth Respondent:
GARTON GROUP PTY LTD
Ninety Sixth Respondent:
GATMARCOLIN PTY LTD
Ninety Seventh Respondent:
GIDLEY HOLDINGS PTY LTD
Ninety Eighth Respondent:
GIFF GAFF PTY LTD
Ninety Ninth Respondent:
GIQSR PTY LTD
One Hundredth Respondent:
GLADSIDE PTY LTD
One Hundred and First Respondent:
GLENMORE PTY LTD
One Hundred and Second Respondent:
GOLDMAKK PTY LTD
One Hundred and Fourth Respondent:
GREENWICH INVESTMENTS (QLD) PTY LTD
One Hundred and Fifth Respondent:
GRIFFITH M PTY LTD
One Hundred and Sixth Respondent:
H & I SMITH PTY LTD
One Hundred and Seventh Respondent:
HALFWAY HAMBURGERS PTY LTD
One Hundred and Eighth Respondent:
HANCOCK JONES GROUP PTY LTD
One Hundred and Ninth Respondent:
HANGESID PTY LTD
One Hundred and Tenth Respondent:
HARRICO PTY LTD
One Hundred and Eleventh Respondent:
HAYDAR PTY LTD
One Hundred and Eleventh Respondent:
HAYDAR PTY LTD
One Hundred and Twelfth Respondent:
HBK HOLDINGS PTY LTD
One Hundred and Thirteenth Respondent:
HDF HOLDINGS PTY LTD
One Hundred and Fourteenth Respondent:
HIGOAL PTY LTD
One Hundred and Fifteenth Respondent:
HOLDEAST PTY LTD
One Hundred and Sixteenth Respondent:
HOLDFAST MANAGEMENT SERVICE PTY LTD
One Hundred and Seventeenth Respondent:
IMTUM PTY LTD
One Hundred and Eighteenth Respondent:
INVERELL M PTY LTD
One Hundred and Nineteenth Respondent:
J & E LEMBERG PTY LTD
One Hundred and Twentieth Respondent:
J. & M. HODGE PTY LTD
One Hundred and Twenty First Respondent:
J SADLER INVESTMENTS PTY LTD
One Hundred and Twenty Second Respondent:
JABAC PTY LTD
One Hundred and Twenty Third Respondent:
JABBA RESTAURANTS PTY LTD
One Hundred and Twenty Fourth Respondent:
JADAM FOODS PTY LTD
One Hundred and Twenty Fifth Respondent:
JAELJAM PTY LTD
One Hundred and Twenty Sixth Respondent:
JAKIARA QLD PTY LTD
One Hundred and Twenty Seventh Respondent:
JALPA FOODS PTY LTD
One Hundred and Twenty Eighth Respondent:
JAMADA PTY LTD
One Hundred and Twenty Ninth Respondent:
JAMADU (QLD) PTY LTD
One Hundred and Thirtieth Respondent:
JAMEL PTY LTD
One Hundred and Thirty First Respondent:
JAMERI PTY LTD
One Hundred and Thirty Second Respondent:
JANASEL PTY LTD
One Hundred and Thirty Third Respondent:
JANDA WHITEHOUSE PTY LTD
One Hundred and Thirty Fourth Respondent:
JARRON PTY LTD
One Hundred and Thirty Fifth Respondent:
JASIE PTY LTD
One Hundred and Thirty Sixth Respondent:
JATAM PTY LTD
One Hundred and Thirty Seventh Respondent:
JAVARI PTY LTD
One Hundred and Thirty Eighth Respondent:
JAYARK PTY LTD
One Hundred and Thirty Ninth Respondent:
JEFFERSON LANE ENTERPRISES PTY LTD
One Hundred and Fortieth Respondent:
JEMADA PTY LTD
One Hundred and Forty First Respondent:
JESMARDAN PTY LTD
One Hundred and Forty Second Respondent:
JETSRUS PTY LTD
One Hundred and Forty Fourth Respondent:
JOHN FRANKHAM PTY LTD
One Hundred and Forty Fifth Respondent:
JOMIK INVESTMENTS PTY LTD
One Hundred and Forty Sixth Respondent:
JONCLO HOLDINGS PTY LTD
One Hundred and Forty Seventh Respondent:
JORANDA PTY LTD
One Hundred and Forty Eighth Respondent:
JOSHMAT PTY LTD
One Hundred and Forty Ninth Respondent:
JUBCAN VENTURE PTY LTD
One Hundred and Fiftieth Respondent:
JUSTICE 2 PTY LTD
One Hundred and Fifty First Respondent:
KAB (QLD) PTY LTD
One Hundred and Fifty Second Respondent:
KAILEV PTY LTD
One Hundred and Fifty Fourth Respondent:
KALBAK PTY LTD
One Hundred and Fifty Fifth Respondent:
KATAHDIN PTY LTD
One Hundred and Fifty Sixth Respondent:
KATHRYN & IAN GARTON GROUP PTY LTD
One Hundred and Fifty Seventh Respondent:
KATTERN PTY LTD
One Hundred and Fifty Eighth Respondent:
KELLY FAMILY RESTAURANTS PTY LTD
One Hundred and Fifty Ninth Respondent:
KELLYCO RESTAURANTS PTY LTD
One Hundred and Sixtieth Respondent:
KESBES PTY LTD
One Hundred and Sixty First Respondent:
KEW ART PTY LTD
One Hundred and Sixty Second Respondent:
KILSYTH FOODS PTY LTD
One Hundred and Sixty Third Respondent:
KIRKWAN PTY LTD
One Hundred and Sixty Fourth Respondent:
KITTOLINK PTY LTD
One Hundred and Sixty Fifth Respondent:
KMA INVESTMENTS PTY LTD
One Hundred and Sixty Sixth Respondent:
KNI-TIME PTY LTD
One Hundred and Sixty Seventh Respondent:
KRAMFORD PTY LTD
One Hundred and Sixty Eighth Respondent:
KWA SIMBI PTY LTD
One Hundred and Sixty Ninth Respondent:
KYMAR NOMINEES PTY LTD
One Hundred and Seventy First Respondent:
LARDNER HOLDINGS PTY LTD
One Hundred and Seventy Second Respondent:
LEVEKE PTY LTD
One Hundred and Seventy Third Respondent:
LIME88 PTY LTD
One Hundred and Seventy Fourth Respondent:
LONGRIDGE PRESTON PTY LTD
One Hundred and Seventy Fifth Respondent:
LOUDOU PTY LTD
One Hundred and Seventy Sixth Respondent:
LOWGAN PTY LTD
One Hundred and Seventy Eighth Respondent:
LTD INVESTMENTS GROUP PTY LTD
One Hundred and Seventy Ninth Respondent:
LUCKY LAKES PTY LTD
One Hundred Eightieth Respondent:
LUGESAL PTY LTS
One Hundred and Eighty First Respondent:
LVANT MECCA PTY LTD
One Hundred and Eighty Second Respondent:
M&P HANLON INVESTMENTS PTY LTD
One Hundred and Eighty Third Respondent:
MACEY PTY LTD
One Hundred and Eighty Fourth Respondent:
MACKALLAN PTY LTD
One Hundred and Eighty Fifth Respondent:
MACTER PTY LTD
One Hundred and Eighty Sixth Respondent:
MADIMASE BEYOND 13 PTY LTD
One Hundred and Eighty Seventh Respondent:
MADMAC INVESTMENTS PTY LTD
One Hundred and Eighty Eighth Respondent:
MADMEL INVESTMENTS PTY LTD
One Hundred and Eighty Ninth Respondent:
MADTIME PTY LTD
One Hundred and Ninetieth Respondent:
MAJAB ENTERPRISES PTY LTD
One Hundred and Ninety First Respondent:
MAJERO INVESTMENTS PTY LTD
One Hundred and Ninety Second Respondent:
MAMMATH PTY LTD
One Hundred and Ninety Third Respondent:
MANHAD PTY LTD
One Hundred and Ninety Fourth Respondent:
MARC AUSTRALIA PTY LTD
One Hundred and Ninety Fifth Respondent:
MARJOM PTY LTD
One Hundred and Ninety Sixth Respondent:
MARJONS RESTAURANTS PTY LTD
One Hundred and Ninety Seventh Respondent:
MATTAUD PTY LTD
One Hundred and Ninety Eighth Respondent:
MAYMAC FOODS PTY LTD
One Hundred and Ninety Ninth Respondent:
MAZCAR PTY LTD
Two Hundredth Respondent:
MAZER PTY LTD
Two Hundred and First Respondent:
MC PETERS PTY LTD
Two Hundred and Second Respondent:
MCFAMILY ENTERPRISES PTY LTD
Two Hundred and Third Respondent:
MCKEIR PTY LTD
Two Hundred and Fourth Respondent:
MCKEOUGH GROUP GRETA PTY LTD
Two Hundred and Fifth Respondent:
MCMASTER & CO PTY LTD
Two Hundred and Sixth Respondent:
MC SQUARED PTY LTD
Two Hundred and Seventh Respondent:
MEADOWS FAMILY RESTAURANTS PTY LTD
Two Hundred and Eighth Respondent:
MEDURI ENTERPRISES PTY LTD
Two Hundred and Ninth Respondent:
MELROSE UNITED PTY LTD
Two Hundred and Tenth Respondent:
MELWELLO PTY LTD
Two Hundred and Eleventh Respondent:
MEMPHIS CORPORATION PTY LTD
Two Hundred and Twelfth Respondent:
MERSEY NOMINEES PTY LTD
Two Hundred and Thirteenth Respondent:
METIME INVESTMENTS PTY LTD
Two Hundred and Fourteenth Respondent:
MICAN ENTERPRISES PTY LTD
Two Hundred and Fifteenth Respondent:
MIELS FAMILY HOLDINGS PTY LTD
Two Hundred and Sixteenth Respondent:
MIJAN PTY LTD
Two Hundred and Seventeenth Respondent:
MIJO GROUP PTY LTD
Two Hundred and Eighteenth Respondent:
MILC NOMINEES PTY LTD
Two Hundred and Nineteenth Respondent:
MINSTOL PTY LTD
Two Hundred and Twentieth Respondent:
M & M BENSON INVESTMENTS PTY LTD
Two Hundred and Twenty First Respondent:
MOJJOS PTY LTD
Two Hundred and Twenty Second Respondent:
MPP PTY LTD
Two Hundred and Twenty Third Respondent:
MSJI PTY LTD
Two Hundred and Twenty Fourth Respondent:
MSJI QLD PTY LTD
Two Hundred and Twenty Fifth Respondent:
NEKA ENTERPRISES PTY LTD
Two Hundred and Twenty Sixth Respondent:
NELLANDI PTY LTD
Two Hundred and Twenty Seventh Respondent:
NEWSTORES PTY LTD
Two Hundred and Twenty Eighth Respondent:
NEZCOPIC (HOGAN’S CORNER) PTY LTD
Two Hundred and Twenty Ninth Respondent:
NFR HOLDINGS PTY LTD
Two Hundred and Thirtieth Respondent:
NGI HOLDINGS PTY LTD
Two Hundred and Thirty First Respondent:
N H H C PTY LTD
Two Hundred and Thirty Second Respondent:
NICO HOLDINGS PTY LTD
Two Hundred and Thirty Third Respondent:
NIEUMORR PTY LTD
Two Hundred and Thirty Fourth Respondent:
NIXMAX PTY LTD
Two Hundred and Thirty Fifth Respondent:
NO LIMITS PTY LTD
Two Hundred and Thirty Sixth Respondent:
NORCLIFFE PTY LTD
Two Hundred and Thirty Seventh Respondent:
NORTH SHORE QSR PTY LTD
Two Hundred and Thirty Eighth Respondent:
NORTH WEST INVESTMENTS PTY LTD
Two Hundred and Thirty Ninth Respondent:
NOWGUNNADOIT PTY LTD
Two Hundred and Fortieth Respondent:
OF GROUP PTY LTD
Two Hundred and Forty First Respondent:
OHTO PTY LTD
Two Hundred and Forty Second Respondent:
ORANGE BEAR AUSTRALIA PTY LTD
Two Hundred and Forty Third Respondent:
P J ANNELLS PTY LTD
Two Hundred and Forty Fourth Respondent:
PADERSON PTY LTD
Two Hundred and Forty Fifth Respondent:
PALSS PTY LTD
Two Hundred and Forty Sixth Respondent:
PANAREA ENTERPRISES PTY LTD
Two Hundred and Forty Seventh Respondent:
PARAMOR PTY LTD
Two Hundred and Forty Eighth Respondent:
PARCORP INVESTMENTS PTY LTD
Two Hundred and Forty Ninth Respondent:
PD AND KJ SHAW PTY LTD
Two Hundred and Fiftieth Respondent:
PEARSE GROUP PTY LTD
Two Hundred and Fifty First Respondent:
PEFIDY PTY LTD
Two Hundred and Fifty Second Respondent:
PENFREY NOMINEES PTY LTD
Two Hundred and Fifty Third Respondent:
PENNON ENTERPRISES PTY LTD
Two Hundred and Fifty Fourth Respondent:
PERTEX PTY LTD
Two Hundred and Fifty Fifth Respondent:
PETER & MARCELLE BAIN PTY LTD
Two Hundred and Fifty Sixth Respondent:
PETONA PTY LTD
Two Hundred and Fifty Seventh Respondent:
PLEXET PTY LTD
Two Hundred and Fifty Eighth Respondent:
POLLBURG PTY LTD
Two Hundred and Fifty Ninth Respondent:
P S & D R COOMES PTY LTD
Two Hundred and Sixtieth Respondent:
PS.ESC PTY LTD
Two Hundred and Sixty First Respondent:
QUEBANI PTY LTD
Two Hundred and Sixty Second Respondent:
RADWELL NOMINEES PTY LTD
Two Hundred and Sixty Third Respondent:
RAH NOMINEES PTY LTD
Two Hundred and Sixty Fourth Respondent:
RAINBOW BRIDGE PTY LTD
Two Hundred and Sixty Fifth Respondent:
RAW TALENT PTY LTD
Two Hundred and Sixty Seventh Respondent:
RELLOM HOLDINGS PTY LTD
Two Hundred and Sixty Eighth Respondent:
REMDA PTY LTD
Two Hundred and Sixty Ninth Respondent:
RETSILLACM PTY LTD
Two Hundred and Seventieth Respondent:
ROBANLOU PTY LTD
Two Hundred and Seventy First Respondent:
ROMALD PTY LTD
Two Hundred and Seventy Third Respondent:
ROSSGLEN PTY LTD
Two Hundred and Seventy Fourth Respondent:
SARONBELL PTY LTD
Two Hundred and Seventy Fifth Respondent:
SCETTELS PTY LTD
Two Hundred and Seventy Sixth Respondent:
SECCA HOLDINGS PTY LTD
Two Hundred and Seventy Seventh Respondent:
SEDAH PTY LTD
Two Hundred and Seventy Eighth Respondent:
SESJ PTY LTD
Two Hundred and Seventy Ninth Respondent:
SHARLUMAH PTY LTD
Two Hundred and Eightieth Respondent:
SHERLEE PTY LTD
Two Hundred and Eighty First Respondent:
SHILLINGTON GROUP PTY LTD
Two Hundred and Eighty Second Respondent:
SINCRO (WA) HOLDINGS PTY LTD
Two Hundred and Eighty Third Respondent:
SMSM PTY LTD
Two Hundred and Eighty Fourth Respondent:
SNR ENTERPRISES PTY LTD
Two Hundred and Eighty Sixth Respondent:
STEEKIM PTY LTD
Two Hundred and Eighty Seventh Respondent:
STOCKFAM PTY LTD
Two Hundred and Eighty Eighth Respondent:
STRENSON PTY LTD
Two Hundred and Eighty Ninth Respondent:
SWANSTAR NOMINEES PTY LTD
Two Hundred and Ninetieth Respondent:
T & K BRYANT PTY LTD
Two Hundred and Ninety First Respondent:
TAMRATH PTY LTD
Two Hundred and Ninety Third Respondent:
TANDER PTY LTD
Two Hundred and Ninety Fourth Respondent:
TARL PTY LTD
Two Hundred and Ninety Fifth Respondent:
TAROWOOD PTY LTD
Two Hundred and Ninety Sixth Respondent:
TONDOL PTY LTD
Two Hundred and Ninety Seventh Respondent:
TORCOOMES PTY LTD
Two Hundred and Ninety Eighth Respondent:
TROIS AMIGOS PTY LTD
Two Hundred and Ninety Ninth Respondent:
TROPHI RESTAURANTS PTY LTD
Three Hundredth Respondent:
TWOCOOL PTY LTD
Three Hundred and First Respondent:
TYMAD INVESTMENTS PTY LTD
Three Hundred and Third Respondent:
TYRELL GROUP HOLDINGS PTY LTD
Three Hundred and Fourth Respondent:
UMELCO PTY LTD
Three Hundred and Fifth Respondent:
VANT MANAGEMENT PTY LTD
Three Hundred and Sixth Respondent:
VIDROL PTY LTD
Three Hundred and Seventh Respondent:
VOMDAY PTY LTD
Three Hundred and Eighth Respondent:
WAVEMAX PTY LTD
Three Hundred and Ninth Respondent:
WAX UP PTY LTD
Three Hundred and Tenth Respondent:
WEIGHTMAN GROUP PTY LTD
Three Hundred and Eleventh Respondent:
WESLIN CO PTY LTD
Three Hundred and Twelfth Respondent:
WESTSIDE QSR PTY LTD
Three Hundred and Thirteenth Respondent:
WHITAYLEE & SONS PTY LTD
Three Hundred and Fourteenth Respondent:
WILBRIDGE SECURITIES PTY LTD
Three Hundred and Fifteenth Respondent:
WILGEN PTY LTD
Three Hundred and Sixteenth Respondent:
WINDMAR PTY LTD
Three Hundred and Seventeenth Respondent:
YASINCO PTY LTD
Three Hundred and Eighteenth Respondent:
YIPPY TRI-SMITH PTY LTD
Three Hundred and Nineteenth Respondent:
YOUNGHOLMES PTY LTD
Three Hundred and Twentieth Respondent:
ZACALE PTY LTD
Three Hundred and Twenty First Respondent:
ZACALEKYE PTY LTD
Three Hundred and Twenty Fourth Respondent:
ZOHO PTY LTD
- AGLC
- Elliott-Carde v McDonald's Australia Limited [2023] FCAFC 162
- Case
- [2023] FCAFC 162
- Decision Date
CaseChat Overview and Summary
The Full Court addressed the question of whether it possessed the statutory power to make a settlement CFO, despite no such order being sought in the proceedings. The Court found that the statutory foundation for such an order lay in section 33V(2) of the Federal Court of Australia Act 1976 (Cth). The Court dismissed challenges to the terms of the reserved question and observations on the representative capacity of industrial associations. The Court concluded that there was no inconsistency between sections 539 and 540 of the Fair Work Act 2009 (Cth) and section 33D of the Federal Court of Australia Act 1976 (Cth). The Full Court determined that the question of whether it was just to make a settlement CFO was not hypothetical and ought to be answered. Furthermore, the Court found that the creation of a settlement CFO was within the judicial power of the Commonwealth, and the consideration of funder's returns did not represent an impermissible foray into policy.
The Full Court answered the reserved question in the affirmative, confirming that it had the statutory power to make a settlement CFO if it was just to do so. The Court also dismissed challenges to the terms of the reserved question and observations on the representative capacity of industrial associations. The Court found no inconsistency between the Fair Work Act 2009 (Cth) and the Federal Court of Australia Act 1976 (Cth), and it concluded that the creation of a settlement CFO was within the judicial power of the Commonwealth. The Court made no order as to costs. The Full Court's decision was in line with the statutory provisions and jurisdictional considerations, providing clarity on the Court's authority to make a settlement CFO in representative proceedings.
Orders
Orders of the court
1. The question reserved under s 25(6) of the Federal Court of Australia Act 1976 (Cth) for hearing and determination by the Full Court being:
If it was just to do so, does the Court have the statutory power, pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth), to make an order distributing money paid under a settlement in the form of a “Settlement CFO”, as that term is defined in Davaria Pty Ltd v 7-Eleven Stores Pty Ltd [2020] FCAFC 183; (2020) 281 FCR 501 (at 506–507 [19], [22]–[25])?
should be answered as follows:
Yes.
2. There be no order as to costs.
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
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.