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
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1.The applicants have withdrawn all allegations of serious contraventions of the Fair Work Act 2009 (Cth).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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- Case
- [2022] FCA 1603
- Decision Date
CaseChat Overview and Summary
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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