FEDERAL COURT OF AUSTRALIA
Fisher v BT Funds Management Ltd (No 2) [2024] FCA 1340
File number(s): VID 826 of 2023 Judgment of: O'BRYAN J Date of judgment: 20 November 2024 Date of publication of reasons: 25 November 2024 Catchwords: PRACTICE AND PROCEDURE – representative proceeding – application under s 33V of the Federal Court of Australia Act 1976 (Cth) (FCA Act) for approval to discontinue representative proceeding – principles relevant to approval of discontinuance – whether discontinuance would be unfair or unreasonable or adverse to the interests of group members – principles relevant to the limitation period for a group member’s claim beginning to run again under s 33ZE of the FCA Act – order under ss 33V(1) and 33ZF of the FCA Act that the limitation period starts to run again – discontinuance approved Legislation: Federal Court of Australia Act 1976 (Cth) ss 33V, 33X, 33ZE, 33ZF
Life Insurance Act 1995 (Cth)
Superannuation Industry (Supervision) Act 1993 (Cth)
Federal Court Rules 2011 (Cth) r 26.12
Cases cited: Adams v Navra Group Pty Ltd [2019] FCA 1157
Alford v AMP Superannuation Limited [2024] FCA 332
Babscay Ptd Ltd v Pitcher Partners [2020] FCA 1610
Caason Investments Pty Ltd v Cao (No 3) [2020] FCA 91
Fisher v BT Funds Management Ltd [2024] FCA 1166
Francis (Trustee) v Oculus Accounting Pty Ltd (No 2) [2021] FCA 1275
Gill v Ethicon Sarl (No 4) [2019] FCA 1814
Hodge v Waters (No 4) [2014] FCA 472
Laine v Thiess Pty Ltd [2016] VSC 689
Lloyd v Belconnen Lakeview Pty Ltd (No 3) [2022] FCA 761
Mercedes Holdings Pty Ltd v Waters (No 1) [2010] FCA 124
Rota v Fire Rescue Victoria [2024] FCA 424
Simonetta v Spotless Group Holdings Limited [2017] FCA 1071
Thirteenth Corp Pty Ltd v State [2006] FCA 979
Turner v TESA Mining (NSW) Pty Ltd (No 2) [2022] FCA 435
Division: General Division Registry: Victoria National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Number of paragraphs: 40 Date of last submission/s: 4 October 2024 Date of hearing: 20 November 2024 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 A Lyons Solicitors for the First and Third Respondents: Allens Counsel for the Second Respondent: K Sharma 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…
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- Case
- [2024] FCA 1340
- Decision Date
CaseChat Overview and Summary
The court examined the principles relevant to the approval of discontinuance and the limitation period for a group member's claim beginning to run again. It considered whether the discontinuance would be unfair or unreasonable or adverse to the interests of the group members and whether the limitation period should start to run again. The court concluded that the discontinuance should be approved and that the limitation period for a group member's claim should begin to run again from 60 days after the filing of the notice of discontinuance.
The court ordered the discontinuance of the proceeding on the terms set out in the Discontinuance Deed and granted leave to the applicants to discontinue the proceeding. It further ordered that any limitation period that applies to the claims of any of the group members shall begin to run again from 60 days after the filing of the notice of discontinuance. The respondents were ordered to pay the applicants' costs of the proceeding. The applicants' confidentiality orders were vacated, and specific parts of certain documents were declared confidential. The court provided liberty to apply to vary the confidentiality orders on three days' notice.
Orders
Orders of the court
Section 33V application
1. Pursuant to s 33V(1) of the Federal Court of Australia Act 1976 (Cth) (Act), discontinuance of the proceeding on the terms set out in the Discontinuance Deed made on 26 September 2024 between the parties, Shine Lawyers Pty Ltd, Woodsford Group Limited and Woodsford Litigation Funding 9 LLP be approved.
2. Pursuant to r 26.12 of the Federal Court Rules 2011 (Cth), leave be granted to the Applicants to discontinue the proceeding by filing a notice of discontinuance with no order as to costs save for orders 4 and 5 below.
3. Pursuant to ss 33V and/or 33ZF of the Act, any limitation period that applies to the claims of any of the Group Members (including the Applicants) to which the proceeding relates shall begin to run again from the date 60 days after the filing of the notice of discontinuance.
4. The First and Third Respondents shall make a payment in respect of the Applicants' costs of the proceeding in the amount of $1.45 million within 7 Business Days of:
(a) the expiry of the period for filing any appeal of these orders without an appeal of these orders being filed; or
(b) if an appeal of these orders is filed and that appeal has been dismissed, the expiry of the period for filing any further appeal without a further appeal being filed; or
(c) if a further appeal is filed, the dismissal of that further appeal.
5. The Second Respondent shall make a payment in respect of the Applicants' costs of the proceeding in the amount of $50,000 within 7 Business Days of:
(a) the expiry of the period for filing any appeal of these orders without an appeal of these orders being filed; or
(b) if an appeal of these orders is filed and that appeal has been dismissed, the expiry of the period for filing any further appeal without a further appeal being filed;
(c) or if a further appeal is filed, the dismissal of that further appeal.
Applicants’ confidentiality orders
6. Order 4 of the orders made by the Court on 9 October 2024, providing for an interim order pursuant to s 37AF(1) of the Act, be vacated.
7. Pursuant to s 37AF of the Act, to prevent prejudice to the proper administration of justice, the documents or parts of documents set out in the schedule below are confidential and are not to be published until further order:
Document Title
Relevant part(s) or paragraph(s)
(a)
Affidavit of Craig Richard Allsopp affirmed 26 September 2024
[32(a)]-[32(c)].
[35]-[36].
[46] after the words “costs incurred.”.
[52] after the words “indicates that” until the words “The quantum of loss”.
(b)
Counsel’s Advice dated 7 August 2024 (comprising pages 137 to 141 of annexure CRA-2 to the Affidavit of Craig Richard Allsopp affirmed 26 September 2024)
Whole document.
(c)
Litigation Finance Agreement (comprising pages 142 to 160 of annexure CRA-2 to the Affidavit of Craig Richard Allsopp affirmed 26 September 2024, and as filed with the Court pursuant to the Class Action Practice Note)
[1.2.1]-[1.2.3], [1.4], [1.16.1]-[1.16.8], [1.18], [1.22.1], [1.22.2], [1.24.1.3], [1.32], [1.36]-[1.37], [1.41], [2]-[3], [7.2]-[7.6], [8.3.1]-[8.3.3], [8.4.1]-[8.4.3], [11.5]-[11.8], [12], [18.2], [26.1].
(d)
Costs Disclosure and Conditional Costs Agreement (comprising pages 163 to 177 of annexure CRA-2 to the Affidavit of Craig Richard Allsopp affirmed 26 September 2024, and as filed with the Court pursuant to the Class Action Practice Note)
Last two bullet points within the “Summary of key information”, [7]-[8], [15]-[16], [18]-[34].
(e)
Discontinuance Deed (comprising pages 178 to 199 of annexure CRA-2 to the Affidavit of Craig Richard Allsopp affirmed 26 September 2024)
Personal addresses of the applicants (on page 180 of annexure CRA-2 to the Affidavit of Craig Richard Allsopp affirmed 26 September 2024)
Bank account details in the definition of “Trust Account” (on page 182 of annexure CRA-2 to the Affidavit of Craig Richard Allsopp affirmed 26 September 2024)
(f)
BT Financial Group Request for Proposal (comprising pages 85 to 136 of annexure CRA-2 to the Affidavit of Craig Richard Allsopp affirmed 26 September 2024)
Whole document.
(g)
Applicants’ submissions dated 26 September 2024
[9(a)]-[9(d)], [13](a)]-[13(f)],”, [14] after the words “incurred is” until the words “- although group members”, [14] after the words “light of the advice” until the end of the paragraph, [15] after the words “very substantial, and” until the words “Shine will not continue”.
8. There be liberty to apply to vary the confidentiality orders on three days’ notice.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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