Fisher v BT Funds Management Ltd (No 2)

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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

Sister Marie Brigid Arthur (Litigation Representative) v Northern Territory of Australia (No 2) [2020] FCA 215

Thirteenth Corp Pty Ltd v State [2006] FCA 979

Turner v TESA Mining (NSW) Pty Ltd (No 2) [2022] FCA 435

Watson v Maximus Holdings (NSW) Pty Ltd [2021] FCA 87

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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Details
Case
[2024] FCA 1340
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Fisher v BT Funds Management Ltd (No 2) involved an application by the applicants for approval to discontinue a representative proceeding. The dispute centred on the terms of a Discontinuance Deed made between the parties and the principles relevant to the approval of discontinuance and the limitation period for a group member's claim beginning to run again. The applicants sought to discontinue the proceeding, and the court was required to determine whether the discontinuance would be unfair or unreasonable or adverse to the interests of the group members.

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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