Hall v Pitcher Partners (a firm)

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FEDERAL COURT OF AUSTRALIA

Hall v Pitcher Partners (a firm) [2022] FCA 1524

File number(s): VID 918 of 2018
Judgment of: BEACH J
Date of judgment: 28 October 2022
Date of publication of reasons: 15 December 2022
Catchwords: REPRESENTATIVE PROCEEDINGS – approval of settlement under s 33V of the Federal Court of Australia Act 1976 (Cth) – appropriateness of funding commission - common fund order – comparison with different types of funding equalisation orders – orders made
Legislation: Federal Court of Australia Act 1976 (Cth) ss 33V, 33ZF
Cases cited: Blairgowrie Trading Ltd v Allco Finance Group Ltd (recs and mgrs apptd) (in liq) (No 3) (2017) 343 ALR 476
BMW Australia Ltd v Brewster (2019) 269 CLR 574
Davaria Pty Ltd v 7-Eleven Stores Pty Ltd (2020) 281 FCR 501
Hall v Arnold Bloch Leibler (a firm) (No 2) [2022] FCA 163
Money Max Int Pty Ltd v QBE Insurance Group Ltd (2016) 245 FCR 191
Division: General Division
Registry: Victoria
National Practice Area: Commercial and Corporations
Sub-area: Regulator and Consumer Protection
Number of paragraphs: 57
Date of hearing: 20 June, 5 August, and 28 October 2022
Counsel for the Applicant: Mr W A D Edwards with Mr D Fahey and Ms R V Howe
Solicitor for the Applicant: Maurice Blackburn
Counsel for the First Respondent: Mr C Caleo KC with Mr J Tomlinson
Solicitor for the First Respondent: SBA Law
Counsel for the Second Respondent: Mr M I Borsky KC
Solicitor for the Second Respondent: Corrs Chambers Westgarth
Counsel for the First to Eighth Cross-Respondents: Mr N Baum
Solicitor for the First to Eighth Cross-Respondents Minter Ellison
Counsel for the Funder Mr L W L Armstrong KC with Ms A G Batrouney
Solicitor for the Funder: Banton Group

ORDERS

VID 918 of 2018
BETWEEN:

MATTHEW HALL

Applicant

AND:

PITCHER PARTNERS (A FIRM)

First Respondent

ERNST & YOUNG LLP

Second Respondent

AND BETWEEN:

PITCHER PARTNERS (A FIRM)

Cross Claimant

AND:

SLATER & GORDON LTD (ACN 097 400) (and others named in the Schedule)

First Cross-Respondent

ORDER MADE BY:

BEACH J

DATE OF ORDER:

18 OCTOBER 2022

THE COURT ORDERS THAT:

1.The first respondent’s cross-claim against the second respondent/ninth cross-respondent be dismissed.

2.The second respondent’s cross-claim against the first respondent be dismissed.

3.Each party is to bear their own costs of and incidental to:

(a)the first respondent’s cross-claim against the second respondent/ninth cross-respondent; and

(b)the second respondent’s cross-claim against the first respondent.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

VID 918 of 2018
BETWEEN:

MATTHEW HALL

Applicant

AND:

PITCHER PARTNERS (A FIRM)

First Respondent

ERNST & YOUNG LLP

Second Respondent

AND BETWEEN:

PITCHER PARTNERS (A FIRM)

Cross Claimant

AND:

SLATER & GORDON LTD (ACN 097 400) (and others named in the Schedule)

First Cross-Respondent

ORDER MADE BY:

BEACH J

DATE OF ORDER:

28 OCTOBER 2022

THE COURT ORDERS THAT:

1.Pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth) (Act), the settlement of the proceeding be…

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Details
Case
[2022] FCA 1524
Decision Date

CaseChat Overview and Summary

The case of Hall v Pitcher Partners (a firm) involved a dispute regarding the approval of a settlement under section 33V of the Federal Court of Australia Act 1976. The settlement was related to a class action that had been initiated against Pitcher Partners, with Ernst & Young being joined as a respondent due to a specific strategy employed by Pitcher Partners. The primary legal issues before the court were the appropriateness of the funding commission and the comparison between different types of funding equalisation orders. The court had to determine whether the settlement terms, including the funding commission and distribution scheme, were fair and reasonable for all parties involved.

The court considered the submissions and evidence presented by the parties, including the Deed of Settlement and the Settlement Distribution Scheme. It examined the appropriateness of the funding commission and compared it to other funding equalisation orders. The court concluded that the settlement was fair and reasonable, and approved the settlement on the terms set out in the Deed of Settlement and the Settlement Distribution Scheme. The court also authorised the applicant to enter into the Deed on behalf of all Bound Group Members and appointed Maurice Blackburn as the Administrator of the Settlement Distribution Scheme.

The court's reasoning was based on the principles of fairness and reasonableness, and it considered the evidence and submissions presented by the parties. The court found that the settlement terms, including the funding commission and distribution scheme, were appropriate and in the best interests of all parties involved. The court also considered the need to prevent prejudice to the proper administration of justice and made orders to restrict the publication and disclosure of certain documents.

The final orders included the approval of the settlement, the appointment of Maurice Blackburn as Administrator of the Settlement Distribution Scheme, and orders restricting the publication and disclosure of certain documents. The court also made orders regarding costs and the repayment of amounts paid into Court as security for the respondent’s costs.

Orders

Orders of the court

1. Pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth) (Act), the settlement of the proceeding be approved on the terms set out in:

(a) the Deed of Settlement entered into between the parties and executed on 26 August 2022 (Deed); and

(b) the Settlement Distribution Scheme (a copy of which is annexed to the Confidential Affidavit of Lee Scott Taylor dated 26 October 2022, and a copy of which sans its confidential schedules is also annexed to the Non-Confidential Affidavit of Lee Scott Taylor dated 26 October 2022) (SDS).

2. Pursuant to s 33V and/or s 33ZF of the Act, the Court authorises the applicant, nunc pro tunc for and on behalf of persons who meet the definition of ‘Group Member’ in paragraph 1 of the Second Further Amended Statement of Claim dated 14 December 2020, and who did not file an opt out notice in accordance with the orders made on 20 July 2021, all such persons being Bound Group Members, to enter into and give effect to the Deed, for and on behalf of all Bound Group Members.

3. Pursuant to s 33ZB and/or s 33ZF of the Act, the persons affected and bound by the settlement of the proceeding and these orders are:

(a) the applicant, all Bound Group Members, the respondent, the cross-respondents, Maurice Blackburn Pty Ltd; and

(b) International Litigation Partners No15 Pte Ltd (the Funder).

4. Pursuant to s 22, s 23 and/or s 33ZF of the Act, rule 1.32 of the Federal Court Rules 2011 (Cth) (Rules), and/or the Court’s implied or inherent jurisdiction, the proceeding be dismissed as and from the date of completion of the administration of the SDS, being the date on which the final distribution under the SDS is confirmed to the Court by Maurice Blackburn (Completion Date).

5. Pursuant to s 33ZF of the Act, on and from the Completion Date, the respondent and its Related Parties (as defined in the Deed) are released by the applicant and each of the Bound Group Members from the applicant’s and Group Members’ Claims (as defined in the Deed) made by or on behalf of the applicant or any Bound Group Member in the proceeding.

6. Pursuant to s 22, s 23 or s 33ZF of the Act, rule 1.32 of the Rules, and/or the Court’s implied jurisdiction:

(a) there be no order as to the costs of the proceeding (such that each party bear their own costs of the proceeding); and

(b) all previous costs orders made in the proceeding be vacated with effect from the Completion Date.

7. Pursuant to rule 2.43(1) of the Rules, all amounts paid into Court by or on behalf of the applicant as security for the respondent’s costs of the proceeding, and any interest accrued on those amounts, be repaid at the direction of the applicant.

Settlement Distribution Scheme

8. Pursuant to ss 33V(2) and/or 33ZF of the Act or otherwise, Maurice Blackburn be appointed Administrator of the SDS, and is to act in accordance with the SDS, subject to any direction of the Court, and be given the powers and immunities contemplated by the SDS from the date of these orders.

9. Pursuant to s 54A(3) of the Act and rule 28.67(1) of the Rules, the report of Catherine Dealehr (appointed as referee pursuant to Order 13 made by the Court on 7 September 2022) (Referee) be adopted.

10. Pursuant to ss 33V(2) and/or 33ZF of the Act, for the purposes of the SDS the amount of the ‘Applicant’s Legal Costs and Disbursements’ (as defined in the SDS), up to and including 28 October 2022, be approved in the amount of $13,117,121 as being reasonable.

11. Pursuant to ss 33V(2) and/or 33ZF of the Act, for the purposes of the SDS the amount of the ‘Funder’s Commission’ (as defined in the SDS) be approved in the amount of $11,480,000 as being reasonable.

12. Pursuant to ss 33V(2) and/or 33ZF of the Act, for the purposes of the SDS the amount of the ‘Applicant’s Reimbursement Payment’ (as defined in the SDS) be approved in the amount of $16,800 as being reasonable.

13. Maurice Blackburn Lawyers (MB) have liberty to apply in relation to any matter arising under the SDS, including in relation to approval of ‘Administration Costs’ (as defined in the SDS).

Other orders

14. Pursuant to s 37AF(1)(b) of the Act, on the ground that the order is necessary to prevent prejudice to the proper administration of justice and until further order, the report of the Referee not be published or disclosed without the prior leave of the Court to any person or entity other than the Referee, the applicant and its legal advisors and the Court.

15. Pursuant to s 37AF(1)(b) of the Act, on the ground that the order is necessary to prevent prejudice to the proper administration of justice and until further order, the Confidential Affidavits of Lee Scott Taylor filed on 26 October 2022, Lorne Franks filed on 27 October 2022 and Paul Lindholm filed on 24 October 2022 together with the annexures and any Excel spreadsheet calculations not be published or disclosed without the prior leave of the Court to any person or entity other than the applicant, MB, the Funder and the Court.

16. Such further or other orders as the Court considers appropriate.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I should say that Ernst & Young was only joined as a respondent to these proceedings because of a particular strategy engaged in by Pitcher Partners seeking to lay off risk elsewhere. Again, I do not need to elaborate on this.Conclusion Apart from what I have said, oral reasons have been previously given concerning these settlement approvals. Nothing further need be said.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.