Fordham v Commonwealth Bank of Australia

In the case of Fordham v Commonwealth Bank of Australia, the applicant, Ms Fordham, sought approval for the settlement of a representative proceeding against the Commonwealth Bank of Australia (CBA) and its insurers. The proceeding concerned allegations of overcharging of fees for consumer credit insurance. The Federal Court was required to decide whether the proposed settlement was fair and reasonable, if the distribution scheme was just, and if certain deductions from the settlement sum should be allowed. The court considered the nature of the proceeding, conducted on a "no win, no fee" basis and without litigation funding, and the necessity of certain deductions for legal costs, administration costs, and adverse costs insurance. The court also considered whether reimbursement payments to the applicant and sample group members should be allowed and if non-publication orders should be made to prevent prejudice to the administration of justice.

The court found that the settlement was fair and reasonable in the interests of group members, the distribution of the settlement fund was just, and the proposed deductions for litigation and administration costs were appropriate. The court allowed certain non-publication orders to prevent CBA from gaining an unfair forensic advantage if the settlement was appealed and the proceeding continued to trial. The court commended the parties for resolving the proceeding by agreement and approved the settlement on the terms set out in the Settlement Deed and the Settlement Distribution Scheme. The court also made orders regarding the registration of late registrants, the applicant's costs and expenses, confidentiality, and the dismissal of the proceeding.

The final orders included approval of the settlement, authorisation for the applicant to enter into the Settlement Deed, registration of late registrants, approval of distributions for legal costs, administration costs, and reimbursement payments, confidentiality orders, and dismissal of the proceeding with specific provisions for enforcement, application, and costs. The Scheme Administrator was granted liberty to apply in relation to any matter arising in relation to the Settlement Distribution Scheme.