FEDERAL COURT OF AUSTRALIA
Jack v CoreStaff NT Pty Ltd [2022] FCA 1005
File numbers: NSD 2024 of 2018
NSD 2162 of 2018Judgment of: BROMWICH J Date of judgment: 26 August 2022 Catchwords: PRACTICE AND PROCEDURE – approval of a settlement of representative proceedings – ss 33V and 33ZF(1) of Federal Court of Australia Act 1976 (Cth) – whether the proposed settlement is fair and reasonable as between group members and the respondent – whether proposed settlement scheme is fair and reasonable as between group members – held: settlement approved. Legislation: Federal Court of Australia Act 1976 (Cth) ss 33V, 33ZB, 33ZF, 37AF, 37AG(1)(a) Cases cited: Alois Jack v Corestaff NT Pty Ltd [2020] FCA#### 973
Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 71 FCR 250
Australian Securities and Investments Commission v Richards [2013] FCAFC 89
Evans v Davantage (No 3) [2021] FCA 70
Masters v Cameron (1954) 91 CLR 353
Mitic v Oz Minerals (No. 2) [2017] FCA 409
Division: Fair Work Division Registry: New South Wales National Practice Area: Employment and Industrial Relations Number of paragraphs: 21 Date of hearing: 26 August 2022 Counsel for the Applicants: J J Fernon SC and J C Conde Solicitor for the Applicants: Levitt Robinson Counsel for the Respondent: K Nomchong SC and S J Maybury Solicitor for the Respondent: DLA Piper ORDERS
NSD 2024 of 2018
NSD 2162 of 2018BETWEEN: ALOIS JACK
First Applicant
PETER GULI
Second Applicant
ASRON PORA (and others named in the Schedule)
Third Applicant
AND: CORESTAFF NT PTY LTD (ACN 129 495 263)
Respondent
ORDER MADE BY:
BROMWICH J
DATE OF ORDER:
26 AUGUST 2022
THE COURT ORDERS THAT:
Approval of Settlement
1.Pursuant to ss 33V and 33ZF of the Federal Court of Australia Act 1976 (Cth) (Act), the proposed settlement is approved and the proceedings NSD2162/2018 and NSD2024/2018 (together, the Proceedings) are dismissed on the basis that there be no order as to costs of or incidental to the Proceedings (including the application for these orders), and otherwise upon the terms of:
(a)the Deed of Settlement and Release which appears in Confidential Exhibit SAL‑3 to the affidavit of Stewart Alan Levitt sworn 30 June 2022; and
(b)the Settlement Scheme, being Exhibit 1A in the settlement approval hearing (Settlement).
2.Pursuant to s 33ZF of the Act:
(a)the applicants in proceeding NSD2162/2018 are authorised, nunc pro tunc, to enter into the Deed of Settlement and Release and to give effect to the Settlement (and all transactions contemplated by it) for and on behalf of the Group Members defined in paragraph 5 of the applicants’ Statement of Claim in proceeding NSD2162/2018 (Group Members);
(b)the Settlement Sum, as defined in the Deed of Settlement and Release, must only be paid and distributed in accordance with the Deed of Settlement and Release and the Settlement…
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- AGLC
- Jack v CoreStaff NT Pty Ltd [2022] FCA 1005
- Case
- [2022] FCA 1005
- Decision Date
CaseChat Overview and Summary
The court considered the Deed of Settlement and Release, which was detailed in the affidavit of Stewart Alan Levitt, and the Settlement Scheme. The court examined the fairness of the settlement sum, the distribution of funds, and the approval of legal costs and other expenses. The court also assessed the settlement scheme to ensure it was fair and reasonable for the group members. The decision hinged on whether the settlement achieved a balance of fairness and reasonableness, considering the benefits and costs to the group members against the respondent’s position.
The court approved the settlement, finding it to be fair and reasonable for all parties involved. The settlement terms included the dismissal of the proceedings with no order as to costs. The court authorised the applicants to enter into the Deed of Settlement and Release and gave effect to the Settlement on behalf of the group members. The court also approved the distribution of the settlement sum, legal costs, and other expenses as proposed. Stewart Alan Levitt was appointed as the Administrator of the Settlement Scheme, with directions to administer it in accordance with its provisions.
The final orders of the court dismissed the proceedings, vacated all previous costs orders, and allowed the applicants, their legal representatives, and Omni Bridgeway to apply for further orders as needed. The settlement documents and related materials were sealed and treated as confidential to protect the interests of the parties involved.
Orders
Orders of the court
Approval of Settlement
1. Pursuant to ss 33V and 33ZF of the Federal Court of Australia Act 1976 (Cth) (Act), the proposed settlement is approved and the proceedings NSD2162/2018 and NSD2024/2018 (together, the Proceedings) are dismissed on the basis that there be no order as to costs of or incidental to the Proceedings (including the application for these orders), and otherwise upon the terms of:
(a) the Deed of Settlement and Release which appears in Confidential Exhibit SAL‑3 to the affidavit of Stewart Alan Levitt sworn 30 June 2022; and
(b) the Settlement Scheme, being Exhibit 1A in the settlement approval hearing (Settlement).
2. Pursuant to s 33ZF of the Act:
(a) the applicants in proceeding NSD2162/2018 are authorised, nunc pro tunc, to enter into the Deed of Settlement and Release and to give effect to the Settlement (and all transactions contemplated by it) for and on behalf of the Group Members defined in paragraph 5 of the applicants’ Statement of Claim in proceeding NSD2162/2018 (Group Members);
(b) the Settlement Sum, as defined in the Deed of Settlement and Release, must only be paid and distributed in accordance with the Deed of Settlement and Release and the Settlement Scheme; and
(c) the legal costs, funding commission, administration costs and payment to the first applicant in proceeding NSD2162/2018, as deposed to in the affidavits of Stewart Alan Levitt, are approved.
3. Pursuant to s 33ZB of the Act, the persons affected and bound by the Settlement are the applicants and respondent to the Proceedings, Group Members, Stewart Alan Levitt, and Omni Bridgeway Ltd (ACN 067 298 088) (Omni Bridgeway) in its capacity as appointed agent and investment manager for each of Omni Bridgeway (Fund 2) Pty Ltd (ACN 621 682 504) and Omni Bridgeway (Fund 3) Pty Ltd (ACN 621 682 460).
Administration of Settlement
4. Pursuant to s 33ZF of the Act, Stewart Alan Levitt is appointed as the Administrator of the Settlement Scheme and is to administer it in accordance with its provisions, subject to any direction of the Court.
Confidentiality
5. Pursuant to ss 37AF and 37AG(1)(a) of the Act, and in order to prevent prejudice to the proper administration of justice:
(a) the Confidential Affidavit of Stewart Alan Levitt sworn 30 June 2022;
(b) Confidential Exhibits SAL-3 and SAL-4 to the Confidential Affidavit of Stewart Alan Levitt sworn 30 June 2022 (including, without limitation, the Joint Confidential Opinion of Mr Fernon SC and Mr Conde of counsel dated 24 June 2022 and appearing at pp 145-169 of Confidential Exhibit SAL-3); and
(c) the Settlement Scheme, being Exhibit 1A in the settlement approval hearing,
are:
(d) to be treated as confidential;
(e) to be sealed on the Court file in an envelope marked “Not to be opened except by leave of the Court or a Judge”;
(f) not to be published or made available, and any electronic version thereof is to be treated in an analogous fashion; and
(g) not to be disclosed to any person or entity except the applicants to the Proceedings, their legal representatives and Omni Bridgeway, with such permitted disclosures to be upon terms that none of those parties or persons disclose that material or any part thereof to any person or entity.
Final orders
6. The Proceedings are dismissed with no order as to costs of the Proceedings or the costs of or incidental to the proceedings (including the application for order 1 above).
7. Pursuant to s 33ZF of the Act, all costs orders previously made in the Proceedings are vacated.
8. Stewart Alan Levitt (as the administrator of the Settlement Scheme) and the parties to the Proceedings 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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