Furnell v SEPL Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Furnell v SEPL Pty Ltd [2022] FCA 1603  

File number: SAD 76 of 2020
Judgment of: CHARLESWORTH J
Date of judgment: 13 December 2022
Date of publication of reasons: 24 January 2023
Catchwords: REPRESENTATIVE PROCEEDINGS – application for approval of settlement – whether proposed settlement fair and reasonable as between the parties and as between group members – settlement sum to include a capped amount for the applicants’ costs – whether issues affecting the applicants’ costs warrant further enquiry – whether any further enquiry would result in an assessment below the capped figure – settlement including the capped costs sum approved
Legislation:

Fair Work Act 2009 (Cth)

Federal Court of Australia Act 1976 (Cth) ss 33V, 33VF

Cases cited:

Australian Securities and Investments Commission v Richards [2013] FCAFC 89

Baker v Woolworths Group Limited (No 2) [2022] FCA 534

Blairgowrie Trading Ltd v Allco Finance Group Ltd (ACN 007 721 129)(recs & mgrs apptd) (in liq) (No 3) [2017] FCA 330; 343 ALR 476

Caason Investments Pty Limited v Cao (No 2) [2018] FCA 527

Evans v Davantage Group Pty Ltd (No 3) [2021] FCA 70

Kelly v Willmott Forests Ltd (in liq) (No 4) [2016] FCA 323; 335 ALR 439

Prygodicz v Commonwealth of Australia (No 2) (2021) 173 ALD 277

Schoneweiss v The Fourth Force Pty Ltd (No 2) [2022] FCA 1489

Stanford v DePuy International Ltd (No 6) [2016] FCA 1452

Thomas v Romeo Lockleys Asset Partnership [2022] FCA 1106

Division: Fair Work Division
Registry: South Australia
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 38
Date of hearing: 13 December 2022
Counsel for the Applicants: Dr Hanscombe KC with Mr J Fetter
Solicitor for the Applicants: Adero Law
Counsel for the Respondent: Mr M Hoffman KC with Mr L Wicks
Solicitor for the Respondent: Piper Alderman
Counsel for Adero Law: The non-party Adero Law appeared by its representative Mr R Markham

ORDERS

SAD 76 of 2020
BETWEEN:

AARON FURNELL

First Applicant

PAUL YOUNG

Second Applicant

SHANNAN MAHONEY (and others named in the Schedule)

Third Applicant

AND:

SEPL PTY LTD

Respondent

ORDER MADE BY:

CHARLESWORTH J

DATE OF ORDER:

13 DECEMBER 2022

THE COURT NOTES THAT:

1.The applicants have withdrawn all allegations of serious contraventions of the Fair Work Act 2009 (Cth).

2.The parties have agreed to the terms upon which these proceedings will otherwise be dismissed without any admission of liability or wrongdoing by the respondent (denials of which are maintained by the respondent).

3.A person who has registered to participate in the settlement the subject of these orders may not fall within the definition of Group Member, including because that person was not employed under the Shahin Enterprises Pty Ltd Employee Collective Agreement – Customer Service Employee, the Shahin Enterprises Pty Ltd Employee Collective Agreement – Full Time Employees or the Vehicle Manufacturing, Repair, Services and Retail Award 2010, for example because they were employed under the Fast Food Award after 1 July 2018.

THE…

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Details
Case
[2022] FCA 1603
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, Furnell and others sought approval of a settlement with SEPL Pty Ltd, Adero Law Pty Ltd, and Mr. Rory Michael Markham. The applicants, who were part of a larger group, sought the Court's approval to resolve the representative proceeding brought on their behalf. The applicants contested the fairness and reasonableness of the settlement terms, which included a capped amount for their costs, and raised concerns about the potential impact of issues affecting these costs on the fairness of the settlement.

The Court examined the settlement's fairness by considering the Deed of Settlement, the Revised Adero Model, and the affidavits provided. The applicants argued that further inquiry into issues affecting their costs was warranted to ensure the settlement was fair and reasonable. However, the Court found that any further inquiry would not result in an assessment below the capped figure, and therefore the settlement was fair and reasonable. The Court also considered the confidentiality of certain materials and the need to protect the proper administration of justice.

The Court approved the settlement terms, including the capped amount for the applicants' costs, and authorised the applicants to enter into the Deed of Settlement on behalf of the group members. The Court also approved the Settlement Distribution Scheme and appointed Adero Law as the Settlement Administrator. The Court further directed the applicants to file a version of their affidavit without the suppressed material and granted liberty to apply to the parties. The Court dismissed the proceedings upon the filing of the Completion Certificate by the Administrator, with no further order as to costs.

The Court's final orders included the approval of the settlement, the appointment of the Settlement Administrator, the approval of the applicants' costs, and the dismissal of the proceedings upon the filing of the Completion Certificate. The Court also imposed confidentiality orders on certain materials and revoked previous suppression orders. The applicants were required to file a version of their affidavit without the suppressed material and provide it to non-parties upon payment of any applicable fee.

Orders

Orders of the court

Change of name of Respondent

1. Pursuant to r 8.21(1)(d) of the Federal Court Rules 2011 (Cth), the applicants have leave to amend the Amended Originating Application so as to alter the name of the Respondent to SEPL Pty Ltd, such Amended Originating Application to be filed on or before 20 December 2022.

Settlement Approval

2. Subject to these orders, pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth) (FCA Act), the settlement of the proceedings upon the terms set out in the “Deed of Settlement” between the applicants, SEPL Pty Ltd, cross-respondents, Adero Law Pty Ltd (Adero) and Mr Rory Michael Markham exhibited as “RMM10-1” to the Affidavit dated 24 October 2022 is approved.

3. Pursuant to s 33V and s 33ZF of the FCA Act, the Court authorises the applicants nunc pro tunc to enter into and give effect to the Deed of Settlement for and on behalf of group members.

4. Pursuant to s 33ZB and s 33ZF of the FCA Act, the persons affected and bound by the settlement of the proceedings are the parties to the Deed of Settlement and group members as defined in the Second Further Amended Statement of Claim, other than those who have opted out of the proceeding pursuant to s 33J of the FCA Act.

Settlement Distribution Scheme

5. Pursuant to s 33V and s 33ZF of the FCA Act, the “Settlement Distribution Scheme” be established on the terms set out in the Settlement Distribution Scheme document appearing as Annexure D to the Deed of Settlement (Scheme Document) save that:

5.1 Schedule 1 of Annexure D (entitled “Calculation Principles”) shall be taken to contain the following text in lieu of the words presently appearing in square brackets:

The calculation principles are embodied in the Microsoft Excel document described as the “Revised Adero Model” in paragraph 57 of the affidavit of Thomas Alexander Griffith dated 6 December 2022. The Settlement Administrator shall make a copy of the Revised Adero Model available to any Group Member upon request, but shall mask the names and other identifying information of other persons who are referred to therein;

5.2 Clause 7 of the Scheme Document is to operate as if the words “30 days” were replaced with the words “42 days” after the appointment of the Administrator.

6. Pursuant to s 33V and s 33ZF of the FCA Act, Adero Law be appointed Administrator of the Settlement Distribution Scheme pursuant to clause 4 of the Scheme Document (Administrator).

Costs of the proceedings

7. Pursuant to s 33V and s 33ZF of the FCA Act, the applicants’ Costs referred to in clause 1(b) of the Deed of Settlement be approved in the amount of $1,650,000.00 inclusive of any GST, to be paid out of the Settlement Sum.

Dismissal of the proceedings

8. The proceedings be dismissed upon the Administrator filing the Completion Certificate pursuant to clause 15 of the Scheme Document with no further order as to costs.

Confidentiality

9. Pursuant to s 37AF of the FCA Act, and on the ground that the order is necessary to prevent prejudice to the proper administration of justice, the following information and material (the Suppressed Material) is to remain confidential, and be placed on the Court file in a sealed envelope marked “Not to be opened except by Direction of a Judge of the Court”:

9.1 the unredacted copy of the affidavit of Mr Rory Michael Markham dated 10 November 2022;

9.2 the opinion of Dr Kristine Hanscombe KC and Mr Joel Fetter dated 9 November 2022, which is annexure RMM 13-1 to the Affidavit of Mr Rory Michael Markham made 10 November 2022 (the Affidavit): and

9.3 all negotiations in connection with the Deed, the Heads of Agreement and the settlement and all information given under the Deed of Settlement, the Heads of Agreement and the settlement.

10. Publication of the Suppressed Material is prohibited.

11. Sub-clause 13.1(a) of the Deed of Settlement is not approved.

12. Upon entry of these orders all previous suppression or confidentiality orders are revoked.

13. By 20 December the applicants are to file a version of the Affidavit which does not annex the Opinion identified at paragraph 9.2 above, and any non-party seeking access to the Affidavit is to be provided with that version upon payment of any applicable fee.

Liberty to apply

14. The parties have liberty to apply.

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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