FEDERAL COURT OF AUSTRALIA
Fisher v BT Funds Management Ltd [2024] FCA 1166
File number(s): VID 826 of 2023 Judgment of: O'BRYAN J Date of judgment: 9 October 2024 Date of publication of reasons: 11 October 2024 Catchwords: PRACTICE AND PROCEDURE – representative proceeding – interlocutory application under s 33X of the Federal Court of Australia Act 1976 (Cth) for leave to issue a notice to certain group members of an application to discontinue the proceeding Legislation: Federal Court of Australia Act 1976 (Cth) ss 33V, 33X, 33Y, 33ZE, 33ZF, 37AF
Federal Court Rules 2011 (Cth) r 26.12
Cases cited: Babscay Pty Ltd v Pitcher Partners [2020] FCA 1610
Melbourne City Investments Pty Ltd v Treasury Wine Estates Limited (2017) 252 FCR 1
Simonetta v Spotless Group Holdings Limited [2017] FCA 1071
Division: General Division Registry: Victoria National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Number of paragraphs: 26 Date of last submission/s: 4 October 2024 Date of hearing: Determined on the papers Counsel for the Applicants: N Owens SC with T Bagley and E Forsyth Solicitors for the Applicants: Shine Lawyers Counsel for the First and Third Respondents: D Thomas SC with K Loxley and Alicia Lyons Solicitors for the First and Third Respondents: Allens Solicitors for the Second Respondent: Herbert Smith Freehills ORDERS
VID 826 of 2023 BETWEEN: DANNYALAN RAYMOND FISHER
First Applicant
JONATHAN FEDSON
Second Applicant
ROY FERGUSON
Third Applicant
AND: BT FUNDS MANAGEMENT LTD (ACN 002 916 458) IN ITS CAPACITY AS TRUSTEE FOR THE RETIREMENT WRAP, BT SUPER FOR LIFE, BT SUPER AND ASGARD INDEPENDENCE PLAN DIVISION TWO
First Respondent
TAL LIFE INSURANCE SERVICES LIMITED (ACN 003 149 157)
Second Respondent
WESTPAC SECURITIES ADMINISTRATION LIMITED (ACN 000 049 472)
Third Respondent
ORDER MADE BY:
O'BRYAN J
DATE OF ORDER:
9 OCTOBER 2024
THE COURT ORDERS THAT:
1.Pursuant to s 33X of the Federal Court of Australia Act 1976 (Cth) (Act), by 4pm on 11 October 2024, the applicants issue a notice in the form appearing at the Annexure to these orders to persons who registered their interest in the proceeding with Shine Lawyers (registered individuals) by:
(a)an email to the email address provided by each registered individual attaching a copy of the notice;
(b)express post, for registered individuals who did not provide an email address but provided an address in Australia; or
(c)registered post, for registered individuals who did not provide an email address but provided an address outside of Australia.
2.Pursuant to s 33X of the Act, by 4pm on 11 October 2024, the applicants publish a copy of a notice in the form appearing at the Annexure to these orders on the website page for the proceeding on the Shine Lawyers’ website ( requirements of s 33X(4) of the Act otherwise be dispensed with.
4.Pursuant to s 37AF(1) of the Act, an…
Keep reading for free
Create a free CaseChat account to read Fisher v BT Funds Management Ltd and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2024] FCA 1166
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the applicants should be granted leave to issue a notice to the group members as proposed, and if so, under what conditions. This included determining the appropriate method of notifying the group members, ensuring compliance with the Federal Court of Australia Act 1976, and addressing any confidentiality concerns regarding the materials submitted.
The court granted the applicants' request for leave, allowing them to issue a notice to the group members in the manner specified. The notice, which was to be sent by email, express post, or registered post depending on the contact details provided by the group members, explained the proposed discontinuance and the options available to the group members. Additionally, the court mandated the publication of the notice on the Shine Lawyers' website. The court also ordered that certain materials be subject to an interim confidentiality order pending further determination of their confidentiality.
The court's reasoning focused on ensuring that the group members were adequately informed about the proposed discontinuance and their options, while also addressing the procedural and confidentiality requirements of the Federal Court of Australia Act 1976. The court concluded that the proposed method of notice was appropriate and that the confidentiality order was necessary to protect sensitive information during the interim period.
The final orders required the applicants to issue the notice to the group members by a specified date, publish the notice on the Shine Lawyers' website, and comply with certain confidentiality requirements. The orders also set a date for the hearing of the discontinuance application, providing the group members with an opportunity to object if they wished to do so.
Orders
Orders of the court
1. Pursuant to s 33X of the Federal Court of Australia Act 1976 (Cth) (Act), by 4pm on 11 October 2024, the applicants issue a notice in the form appearing at the Annexure to these orders to persons who registered their interest in the proceeding with Shine Lawyers (registered individuals) by:
(a) an email to the email address provided by each registered individual attaching a copy of the notice;
(b) express post, for registered individuals who did not provide an email address but provided an address in Australia; or
(c) registered post, for registered individuals who did not provide an email address but provided an address outside of Australia.
2. Pursuant to s 33X of the Act, by 4pm on 11 October 2024, the applicants publish a copy of a notice in the form appearing at the Annexure to these orders on the website page for the proceeding on the Shine Lawyers’ website (https://www.shine.com.au/service/class-actions/bt-super-insurance-class-action).
3. The requirements of s 33X(4) of the Act otherwise be dispensed with.
4. Pursuant to s 37AF(1) of the Act, an interim confidentiality order be made over material identified by the applicants to be confidential or privileged in the affidavit of Craig Richard Allsopp affirmed 26 September 2024 and its annexures, and the applicants’ submissions in support of the applicants’ interlocutory application dated 26 September 2024, pending determination of the confidentiality of that material at the hearing on 20 November 2024.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ANNEXURE
FISHER & ORS V BT FUNDS MANAGEMENT LTD & ORS (VID826/2023)
NOTICE OF PROPOSED DISCONTINUANCE OF CLASS ACTION
This notice contains important information about the proposed discontinuance of Fisher & Ors v BT Funds Management Ltd & Ors (VID 826/2023). You have two options:
1. If you do not oppose the discontinuance, you do not need to do anything.
2. If you oppose the discontinuance (or any part of it), you need to follow the steps set out below.
You should read this notice carefully, as it concerns your rights. If there is anything in it that you do not understand, you should seek legal advice.
A. Why are you receiving this notice?
1. The Federal Court of Australia has ordered that this notice be sent to persons who have registered their interest with Shine Lawyers in relation to the above class action, Federal Court of Australia proceeding VID 826/2023: Dannyallan Raymond Fisher & Ors v BT Funds Management Ltd (ACN 002 916 458) in its capacity as trustee for the Retirement Wrap, BT Super For Life, BT Super and Asgard Independence Plan Division Two (First Respondent) & Ors (Proceeding).
2. The Proceeding relates to alleged breaches of trustee duties under superannuation legislation and the general law by the First Respondent and Westpac Securities Administration Limited (ACN 000 049 472) (Third Respondent) in relation to group insurance offered to superannuation fund members following a tender process. TAL Life Insurance Services Limited (ACN 003 149 157) (Second Respondent) was alleged to have been knowingly involved in those alleged breaches of trustee duties.
3. The Applicants have litigated the Proceeding with the benefit of funding from Woodsford Group Limited and Woodsford Litigation Funding 9 LLP (Woodsford).
B. Reasons for and effect of the proposed discontinuance
4. The Applicants have sought the leave of the Court to discontinue the Proceeding. This follows the Respondents' applications to strike out parts of the Applicants' statement of claim filed in the Proceeding and the serving of various materials on the Applicants by the Respondents. In view of those applications and materials, the Applicants, Shine Lawyers and Woodsford have agreed to discontinue the Proceeding.
5. Under the proposed discontinuance:
(a) The Proceeding will be discontinued.
(b) The Respondents will pay an amount towards the Applicants' costs of bringing the Proceeding.
(c) Woodsford will cease to fund the Proceeding and will not fund another proceeding against the Respondents arising out of the same or similar facts.
(d) Shine Lawyers will cease to act in the Proceeding.
(e) From 60 days after the date on which the discontinuance is approved, any limitation period (i.e. the time within which an action must be commenced) that applies to any group members to which the Proceeding relates shall begin to run again.
6. If the Court grants leave to discontinue the Proceeding, this will not affect the rights of the Applicants or group members to pursue in another proceeding the claims brought in this Proceeding. You can seek advice from a lawyer about your options if you wish to do so.
7. You are receiving this because you may be a group member in the Proceeding. To be a group member you must have been:
a) a member of a superannuation fund of which the First or Third Respondent was the trustee; and
b) a holder of a superannuation product issued by the First or Third Respondent as trustee that provided insurance cover under a group policy of insurance issued by the Second Respondent in the period 6 October 2017 until 1 April 2023.
8. Discontinuance of the Proceeding requires approval by the Court. The discontinuance application will be heard on 20 November 2024.
C. What do you have to do?
9. You have the following options:
If you do not oppose the proposed discontinuance
· You do not have to do anything.
If you oppose the proposed discontinuance
· You should seek independent legal advice should you wish to take the following steps.
· You need to complete a “Notice of Objection” (overleaf) and send it to Shine Lawyers and the Court using the address details on the form. The Notice of Objection must be received by 4pm on 13 November 2024.
· You will need to be willing to propose yourself or another group member to be substituted as lead applicant in the Proceeding and thereby take over conduct of the case. Any new lead applicant must be willing to conduct the case on his or her own behalf and on behalf of group members, and to appoint lawyers to act in the case and to meet the legal costs or arrange for them to be met.
· If you object, you may wish to submit material (including documents, or submissions) for the Court to consider. This material must be received by the Court by 4pm on 13 November 2024
· If you wish to make oral arguments in support of your objection during the Court hearing for the discontinuance application on 20 November 2024, please indicate this on the Notice of Objection, and arrangements will be made for you to be able to do so.
D. Where can you get further information?
10. Copies of relevant documents (including the statement of claim and defences) may be obtained from https://www.shine.com.au/service/class-actions/bt-super-insurance-class-action, or by emailing Shine Lawyers at btfmlegal@shine.com.au or telephoning 1800 870 492.
Please consider the above matters carefully. If there is anything of which you are unsure, you should contact Shine Lawyers or seek your own legal advice. Please bear in mind that while you should contact Shine Lawyers for further information as necessary, Shine Lawyers are unable to provide specific legal advice to group members.
Notice of Objection to Proposed Discontinuance
TO:
- The Federal Court of Australia, by email to the Victoria Registry at vicreg@fedcourt.gov.au; and
- The Applicants’ solicitors, by email to btfmlegal@shine.com.au
The person identified below gives notice that the person OBJECTS to the Proposed Discontinuance of this proceeding.
A. DETAILS OF OBJECTOR
Name:
Telephone:
Email:
B. GROUND(S) OF OBJECTION
My submissions in support of my objection to the Proposed Discontinuance are as follows [set out in the space below any submissions you wish to make, attach additional pages if necessary]:
C. ATTENDANCE AT HEARING on 20 November 2024 at 10.15am (AEDT)
I intend to appear before the Court at the hearing on 20 November 2024 at 10.15am (AEDT)
[If you intend to appear, please complete the following]:
I will appear on my own behalf
I will be represented by a lawyer: …………………………………………
I do not intend to appear, but wish for my submissions to be considered in my absence
Signed:
Nameofpersonsigning:
Date:
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.