Kain v R&B Investments; Ernst & Young v R&B Investments; Shand v R&B Investments

[2025] HCATrans 13

[2025] HCATrans 013

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S146 of 2024

B e t w e e n -

JOHN BRUCE KAIN

Appellant

and

R&B INVESTMENTS PTY LTD AS TRUSTEE FOR THE R&B PENSION FUND

First Respondent

DAVID FURNISS

Second Respondent

BLUE SKY ALTERNATIVE INVESTMENTS LIMITED ACN 136 866 236 (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION)

Third Respondent

ROBERT WARNER SHAND

Fourth Respondent

ERNST & YOUNG (A FIRM) ABN 75 288 172 749

Fifth Respondent

CHUBB INSURANCE AUSTRALIA LIMITED ACN 001 642 020

Sixth Respondent

DUAL AUSTRALIA PTY LTD ACN 107 553 257 ON BEHALF OF CERTAIN UNDERWRITERS AT LLOYD’S BEING:  (I) LIBERTY MANAGING AGENCY LIMITED FOR AND ON BEHALF OF SYNDICATE 4473; (II) ASTA MANAGING AGENCY LTD FOR AND ON BEHALF OF SYNDICATE NO. 2786 EVE; AND (III) HARDY (UNDERWRITING AGENCIES) LIMITED, MANAGING AGENT FOR AND ON BEHALF OF LLOYD’S SYNDICATE HDU 382

Seventh Respondent

ZURICH AUSTRALIAN INSURANCE LIMITED ACN 000 296 640

Eighth Respondent

XL INSURANCE COMPANY SE ARBN 083 570 441

Ninth Respondent

Office of the Registry
  Sydney  No S144 of 2024

B e t w e e n -

ERNST & YOUNG (A FIRM) ABN 75 288 172 749

Appellant

and

R&B INVESTMENTS PTY LTD AS TRUSTEE FOR THE R&B PENSION FUND

First Respondent

DAVID FURNISS

Second Respondent

BLUE SKY ALTERNATIVE INVESTMENTS LIMITED ACN 136 866 236 (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION)

Third Respondent

ROBERT WARNER SHAND

Fourth Respondent

JOHN BRUCE KAIN

Fifth Respondent

CHUBB INSURANCE AUSTRALIA LIMITED ACN 001 642 020

Sixth Respondent

DUAL AUSTRALIA PTY LTD ACN 107 553 257 ON BEHALF OF CERTAIN UNDERWRITERS AT LLOYD’S BEING:  (I) LIBERTY MANAGING AGENCY LIMITED FOR AND ON BEHALF OF SYNDICATE 4473; (II) ASTA MANAGING AGENCY LTD FOR AND ON BEHALF OF SYNDICATE NO. 2786 EVE; AND (III) HARDY (UNDERWRITING AGENCIES) LIMITED, MANAGING AGENT FOR AND ON BEHALF OF LLOYD’S SYNDICATE HDU 382

Seventh Respondent

ZURICH AUSTRALIAN INSURANCE LIMITED ACN 000 296 640

Eighth Respondent

XL INSURANCE COMPANY SE ARBN 083 570 441

Ninth Respondent

Office of the Registry
  Sydney  No S143 of 2024

B e t w e e n -

ROBERT WARNER SHAND

Appellant

and

R&B INVESTMENTS PTY LTD AS TRUSTEE FOR THE R&B PENSION FUND

First Respondent

DAVID FURNISS

Second Respondent

BLUE SKY ALTERNATIVE INVESTMENTS LIMITED ACN 136 866 236 (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION)

Third Respondent

JOHN BRUCE KAIN

Fourth Respondent

ERNST & YOUNG (A FIRM) ABN 75 288 172 749

Fifth Respondent

CHUBB INSURANCE AUSTRALIA LIMITED ACN 001 642 020

Sixth Respondent

DUAL AUSTRALIA PTY LTD ACN 107 553 257 ON BEHALF OF CERTAIN UNDERWRITERS AT LLOYD’S BEING:  (I) LIBERTY MANAGING AGENCY LIMITED FOR AND ON BEHALF OF SYNDICATE 4473; (II) ASTA MANAGING AGENCY LTD FOR AND ON BEHALF OF SYNDICATE NO. 2786 EVE; AND (III) HARDY (UNDERWRITING AGENCIES) LIMITED, MANAGING AGENT FOR AND ON BEHALF OF LLOYD’S SYNDICATE HDU 382

Seventh Respondent

ZURICH AUSTRALIAN INSURANCE LIMITED ACN 000 296 640

Eighth Respondent

XL INSURANCE COMPANY SE ARBN 083 570 441

Ninth Respondent

GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 4 MARCH 2025, AT 9.59 AM

Copyright in the High Court of Australia

____________________

MR R.M. FOREMAN, SC:   Your Honours, if it please the Court, I appear with MR R.K. JAMESON for the appellant in S146/2024.  (instructed by Arnold Bloch Leibler)

MR M.R. HODGE, KC:   May it please the Court, I appear with MS G.B. WESTGARTH for Mr Shand, who is the fourth respondent in S146/2024.  (instructed by GRT Lawyers)

MR S.A. LAWRANCE, SC:   May it please your Honours, I appear with my learned friend MS A.E. SMITH for the fifth respondent in S146/2024, Ernst & Young.  (instructed by Corrs Chambers Westgarth)

MR J.T. GLEESON, SC:   May it please the Court, I appear with MR S.H. HARTFORD DAVIS, MR D.S. MORRIS and MS O.J. RONAN for the first and second respondents.  (instructed by Banton Group and Shine Lawyers)

MR C.L. LENEHAN, SC:   May it please the Court, I appear with MR R. HARVEY for the Association of Litigation Funders of Australia, seeking leave to intervene or be heard as amicus curiae  (instructed by William Roberts Lawyers)

GAGELER CJ:   I note that there is a submitting appearance for the third respondent and there is no appearance for the sixth to ninth respondents.  Is your intervention opposed, Mr Lenehan?

MR LENEHAN:   I understand it is not.

GAGELER CJ:   And you seek 15 minutes?

MR LENEHAN:   We do.  Your Honours will have seen that that is accommodated within the hearing timetable on day two.

GAGELER CJ:   Yes.  You have leave to intervene.  We will receive your written submissions, and you will have a maximum of 15 minutes. 

MR LENEHAN:   Please the Court.

GAGELER CJ:   Thank you.

MR LENEHAN:   Your Honour.  Just while I am here, Mr Hodge reminds that there is an issue regarding our affidavit.  I understand the position of our friends is that they are content for your Honours to receive the affidavit and for us to say whatever we wish to say about it in submissions.

GAGELER CJ:   Very well.  Thank you.  Mr Hodge.

MR HODGE:   May it please the Court.  Could I just indicate, about the affidavit, we object to it on the basis that it ought not be received or ultimately admitted into evidence.  As we understand it, it is ultimately going only to the notice of contention, and we understand the way in which it will be developed – or we apprehend the way in which it will be developed is to say it is relevant evidence to establishing the third John ground, and therefore it will be dealt with in that way.  I will say whatever I need to say about it in reply.

GAGELER CJ:   Thank you.

MR HODGE:   Your Honours, the three notices of appeal are framed in slightly different ways, but each of the appellants raise two grounds as to why the Full Court was wrong to answer the reserved question “yes”.  The first ground is that there was no power to make a common fund order under section 33V(2) or section 33Z(1)(g).  The second ground is that even if there is a power to make common fund orders in general, there is no power to make a solicitors’ CFO, as it is referred to in the various submissions.

I will address the Court in relation to that first ground.  That is, the court’s power in general under 33V(2) and 33Z(1)(g) to make a common fund order.  Mr Foreman for Kain will address the second ground, as will Mr Lawrance for Ernst & Young rely.  The respondents have also filed a notice of contention, which can be found at page 74 of the appeal book, and I will deal with ground 1 of the notice of contention, Mr Foreman will deal with ground 3 of the notice of contention, Mr Lawrance will deal with ground 4 of the notice of contention, and ground 2 of the notice of contention is not pressed.

I anticipate, in respect of that which I am dealing with, ground 1 will no doubt be developed orally, and I have reserved time in reply to take account of that.  To move then to ground 1 and the question of CFOs under section 33V(2) and 33Z(1)(g), at the conclusion of your Honour Justice Edelman’s judgment in dissent in Brewster, your Honour observed that there had at times been a heavy focus in the arguments in that case on policy, including as to the merits of book building, and that there may be doubt as to whether the courts are the best forum for resolution of those questions of policy.  Your Honour’s reasoning in Brewster in construing section 33ZF, like that in the other four judgments, was reasoning based on the text of the statute, not the policy issues unanchored from the text.

We recognise that drawing the line between policy and textual interpretation is not necessarily straightforward, including because construing the text of the statute is informed by the object and purpose of the statute.  But it is, in our submission, a useful line for distinguishing between the right place to start and the wrong place to start.  Policy arguments about whether, if class actions are in general funded in a particular way, it will lead to lower or higher commission rates, will lead to greater or fewer class actions in one jurisdiction or another, and whether this is good or bad, are interesting and complex and difficult.

As I will note when I come to addressing the notice of contention, once one starts down the road of trying to evaluate these kinds of things at a policy level, one has to weigh other consequences of things that have developed in relation to class actions that are a product or an outworking of a process of approaching book building and CFOs in a particular way.  One has to then consider the consequences of soft class closure, of low registration, of the costs of trying to achieve higher registration at a late stage in the proceeding, of the moral and economic consequences of an open class action extinguishing the rights of unregistered group members.  But, ultimately, whether the commercial construct of a CFO is good or bad is not the question and ought not be the starting point.

In our submission, we begin with the text, and our submission is that the text of section 33V(2) and section 33Z(1)(g) need each be considered separately.  But what can be observed at a level of commonality is two things.  First, each uses words to the effect that empower the court to do what is just, and we recognise that, shorn of any other context, those are words of the widest import.  Second, each of those sections is concerned with doing what is just in the context of undertaking a specific task, and I will develop this by addressing each section in turn.

In our submission, the attempted reliance on section 33V(2) or section 33Z(1)(g) to found a common fund order is one premised on necessity for those who seek them because there are no other words in Part IVA on which to hang an order for a common fund order.  That is, as opposed to the logical outworking of the text of those sections.  To begin with 33V(1) ‑ ‑ ‑

GORDON J:   Could I just ask one question, just so I understand the playing field.

MR HODGE:   Yes.

GORDON J:   The question which was reserved was a question that had a number of elements to it.  One was a question about:

power . . . upon the settlement or judgment of a representative proceeding, to make an order (being a “common fund order” –

Which is then defined by reference to Justice Lee’s decision in Davaria at paragraphs 22 to 30, which, on its face, has a number of possible variations and permutations. The second is the last phrase of that question seems to be a question about power directed to a payment being made “to a solicitor” from:

the distribution of funds . . . otherwise than as payment for costs and disbursements incurred –

Is that the limit of what we are directed at, subject to the notice of contention?  So, it has two aspects to it.  One is:  what are we actually talking about, when we are talking about a CFO?  Do we need to address that question, when we are coming to look at the text, before we get to the text?  And are we limited at that identification of the kind of order that might be made, if there is power to do so?  You may be coming to this, Mr Hodge.

MR HODGE:   I think the answer to both of your Honours’ questions is, yes.  In the way that the parties have approached it, there does not seem to be – at least now – a difference between them as to the nature of a CFO, and in the way that it was approached by the Full Court below in light of the question that was reserved by Justice Lee, that also seems to have been premised on a common idea of a CFO.

The reason I frame it like that is because Justice Lee had also, in framing the question originally, raised the possibility of considering a slightly different issue as well, which was an issue about whether or not, in effect, there was another basis on which to make a CFO that would be a substantive legal right that a funder would have, as against unfunded group members, flowing either from equity or by analogy with some principle of salvage.

GORDON J:   There were taken out.  So, I am just dealing with the question that ultimately came up to the Court of Appeal.

MR HODGE:   Yes.

GORDON J:   Or to the Full Court.

MR HODGE:   The Full Court, yes, your Honour.  Yes.

GLEESON J:   Which is about settlement CFOs.

MR HODGE:   Yes – settlement CFOs or judgment CFOs.  So, 33V(2), being what is described as a settlement CFO, and 33Z(1)(g), being a judgment CFO.

BEECH-JONES J:   Mr Hodge, just to pick up another part of Justice Gordon’s question, the phrase:

otherwise than as payment for costs and disbursements –

is quite a wide one, but is the context there of, in particular, a payment fixed by reference to a proportion of the verdict or settlement sum?

MR HODGE:   Yes.

BEECH-JONES J:   In other words, this question – the second part of this question – was about a contingency fee.

MR HODGE:   Yes.  So, there are really two elements.  One is, it is a payment that is received from or calculated by reference to a judgment sum.  The second element of it is, what is it for?  That is, it is not for ‑ ‑ ‑

BEECH-JONES J:   Costs and services.

MR HODGE:   ‑ ‑ ‑ legal services per se.  It is for carrying the risk in relation to the litigation.

GORDON J:   It is profit on risk.

MR HODGE:   Yes, that is right.

GORDON J:   Thank you.

MR HODGE:   In relation to section 33V, which – I imagine your Honours are all working off separate copies, but I will just indicate that is at page 214 of volume 1 of the joint volume of authorities.

GAGELER CJ:   You can take it that we are working from pamphlet copies.

MR HODGE:   Thank you, your Honour.  Your Honours will see, in relation to section 33V(1), that it provides that:

a representative proceeding may not be settled or discontinued without the approval of the Court.

And then subsection (2) provides:

if the Court gives such an approval –

so, that is, if the court has exercised the power under 33V(1) to approve a settlement, then, under 33V(2), the court:

may make such orders as are just with respect to the distribution of any money paid under a settlement or paid into the Court.

And our submission is that when 33V(2) is read in the context of the whole of the section, including section 33V(1),what is apparent is that subsection (2) is empowering the court to do what is just in respect of the distribution of any money, conferring the necessary power to achieve the distribution of the money to the applicant and group members, and to ensure that the distribution as between them is fair.  It is not the conferral of a power to pay money to non-parties to the proceedings on the premise that there is now a fund that has arisen from the settlement.

GLEESON:   You are reading in the words, as between group members, after the words “distribution of any money paid”.

MR HODGE:   Not necessarily.  That is, it is, we would say, when you read (1) with (2) and think about the context or consider the context in which this section operates, it is not so much about reading in words in relation to 33V(2), it is about understanding or recognising that the context in which there comes to be a settlement sum to be distributed is that it is a sum that is the compromise of the legal rights of the applicant and group members, and that, under the settlement agreement, it must be that what is being paid is a sum by a respondent in exchange for the compromise of the rights that are held by the applicant and group members.

That is, it is a payment from the respondent to the applicant and group members, so that is the premise of 33V(1).  Then, 33V(2) is concerned with distributing that sum, which is a sum that is necessarily, by virtue of the approval of the settlement, going to be payable to the group members and to the applicant.  That is the way in which we would frame it.

BEECH-JONES J:   But you say it is limited to distributing money to group members and the applicant, that is it?

MR HODGE:   It is limited to doing what is necessary in order to distribute the sum that has arisen from the settlement to group members of the applicant, because that is who the sum is for.  So, that will necessarily involve – or ordinarily involve incurring various kinds of expenses, so an administrator may need to be appointed and will have their costs paid from the fund in order to allow for registrations of group members and then to arrange for the distribution of funds to them.

It might also be the case that the costs that have been incurred by the applicant and funded group members in relation to the achievement of that settlement is something that ought then be shared, or necessarily needs to be shared, as between all of the group members who are going to benefit from the settlement, and that that is doing justice as between them.  But that is ‑ ‑ ‑

BEECH-JONES J:   So, is not that a common fund order, in effect?

MR HODGE:   No, that would be an FEO, as opposed to a common fund order.  So, a common fund order – the premise of the common fund order being that there is no legal liability that has arisen to the funder, but the funder, on the premise only of an order under 33V(2), seeks to be entitled to some portion of the judgment sum, whereas the premise of an ‑ ‑ ‑ 

BEECH-JONES J:   That is reading into “just” the existence of a pre‑existing legal obligation owed by someone in the group to a third party?

MR HODGE:   Can I – I will seek to put in a different way, which is to say it is not about reading something into the section, because it might be that all kinds of things are necessary to justly arrange for the distribution of the fund that belongs to the applicant and group members as a result of the compromise of their rights that might involve the payment to third parties in order to achieve that distribution.  But there is no logic by which the achieving of the distribution of the proceeding, once it has been settled, necessitates the distribution or the payment of money to the funder.  The task of the funder is complete at that point in time.

EDELMAN J:   Your end point is clear, but the pathway, at least to me, is not entirely clear.  I think you have just answered Justice Gleeson and Justice Beech‑Jones to the effect that your argument is not one about implication, you are not seeking to confine the general words of 33V(2) by any implication at all.  It seems to me that the only other game in town is that you must be confining the application of those general words, which is what the plurality in Brewster denied that they were doing.

MR HODGE:   I do not – or at least, our submission is we are not confining the application in that way.  We are following what is in effect the form of reasoning that was adopted by the plurality in Brewster, in the sense that the plurality in Brewster, in considering section 33ZF, looked at the section and the context in which it existed within Part IVA and effectively described it as a procedural gap‑filling section – that is my, perhaps too short a summary of it – rather than something that was a section that gave a power to confer substantive rights.

We say, in relation to 33V(2), there is a different context from 33ZF.  The context in relation to 33V(2) is that you already have a settlement that has been approved.  The settlement that has been approved is necessarily one that compromises the rights of the applicant and group members in exchange for a payment by the respondent, because otherwise 33V(2) never comes to be exercised.

In that context, what has to be understood about what is being distributed and what is therefore encapsulated by the idea of what is just, is achieving the distribution of that fund which has been received in exchange for the settlement that has been approved under 33V(1), which is a slightly different thing from saying, we are implying in words of restriction into 33V(2).  We accept that 33V(2) is words of the widest import in the particular context that it is used, but it ‑ ‑ ‑ 

EDELMAN J:   It is an application argument; it is an argument that the application of the word “just” is confined by reference to the purpose and the general operation of the provisions as a whole.

MR HODGE:   I do not think – I am at least not going to seek to disagree with your Honour’s characterisation of the argument, but it is not one that is about, in our submission, implying words into 33V(2).

BEECH‑JONES J:   Well, this settlement you are assuming, is that a settlement involving a large lump sum which was understood to be distributed to individual group members by reference to some criteria?  Is that the type of settlement you are talking about, as opposed to, say, a defendant who agrees to pay the named – to enter separate judgments in the name of each, say, hundred members, if it is a small class, X dollars?  Because you keep talking about a fund and a sum and all those sorts of things, but that is a form of settlement for the larger ones.

MR HODGE:   Yes, and the reason I talk about a fund is because the premise of 2 is that there is a fund.  Either a fund that is held separately or a fund that has been paid into court, as opposed to a situation which your Honour is identifying where it might be – if you had a very small class and only tens or hundreds of people – you have a settlement deed that compromises individually by each person, and then what would be approved is the settlement in relation to – a settlement that comprises everybody’s rights individually.

GAGELER CJ:   Mr Hodge, you could take this on notice.  I would be assisted by having a precise form of a CFO to focus on, and also a precise form of a solicitors’ CFO.  You might be able to find examples in the decided cases; you can just point to those.

MR HODGE:   Yes.

GAGELER CJ:   But who is being ordered to do what would be helpful to me, to ‑ ‑ ‑ 

MR HODGE:   I understand, and we will seek to have that after the morning tea break, if we can.

GAGELER CJ:   Thank you.

GLEESON J:   Could I add to that, a form of FEO?

MR HODGE:   Yes.

GLEESON J:   Thank you.

MR HODGE:   Can I indicate, about an FEO – which may already be apparent to the Court from the submissions – there are two forms of FEO that are referred to in the judgment.  So, we will seek to, if we can, find both, but they have different mathematical consequences in terms of what the consequences of them are, in terms of what amount is received by the funder.

GORDON J:   I think it also – if it is going to come from you, then the other parties will need to either have looked at it and commented on them or provided their own.

MR HODGE:   Yes.  It may be that it is more convenient, then, for us to try to come up with something that is agreed overnight.  Though ultimately, I imagine, when Mr Foreman gets to his feet, he will direct your Honours to the solicitors’ CFO in this case – you will at least be able to look at that particular form of solicitors’ CFO, which I – there are some slight differences in terms of how one might frame a solicitors’ CFO and whether or not it includes separately a payment for legal expenses and then a proportion of the judgment sum, or whether or not it is ‑ ‑ ‑ 

GORDON J:   That is what is sought here.

MR HODGE:   Yes.

GORDON J:   As distinct from a GCO under the Victorian regime ‑ ‑ ‑

MR HODGE:   That is correct.

GORDON J:   ‑ ‑ ‑ which is just limited to a percentage of the settlement fund.

MR HODGE:   Yes.  That is right.

EDELMAN J:   Which does raise a question of whether that type of provision actually falls within the definition with which you opened.  In other words, that it is a profit on risk, because if one already has a provision for legal costs, the risk is not the usual risk of running the litigation; the risk is just the risk of default on payment of costs.

MR HODGE:   There are probably a few different kinds of risks.  One, as your Honour says, is, effectively, the common kind of risk that we are all familiar with on a conditional costs agreement where the lawyers will only be paid if there is a successful judgment.  So, there is that risk.  If the solicitors are also offering a necessary undertaking for security of the costs, then there will be that risk.  There will also potentially be some form of carrying cost risk that will be associated with disbursements and that things of that nature.

GORDON J:   But sometimes those elements are built into the actual fees and costs and disbursements which are charged.

MR HODGE:   Yes.

GORDON J:   That is, the rate that takes into account both risk and profit.

MR HODGE:   Yes, that is right.  It is practically possible to do that.

GORDON J:   That is one aspect.  Then the second aspect of the current form of the SCFO is dealing with a different form of profit.  It is dealing with a profit on recovery under the settlement fund.

MR HODGE:   Yes.

GORDON J:   Because they have already recovered, on the first limb, their costs and disbursements, including any profit that has been built into it and any risk they have built into it.

MR HODGE:   Yes.  I imagine that it will be said – but ultimately, it will be for Mr Gleeson, perhaps, to expand upon this – that it is not as straightforward as saying all of the risk associated with whether or not you actually get paid your legal costs is going to be built into the rates that are to be charged in relation to those legal costs.  So, the purpose of framing it in this way is to – the purpose of framing their solicitors’ CFO in this way is in order to have part of that risk – or perhaps all of that risk – included separately in relation to the part that is the percentage of the judgment sum, but he may put it a different way.  I just flag that one can imagine that there are different ways of conceiving of how risk is incorporated or adopted within your charging regime.

STEWARD J:   I was going to ask you, are there any findings or evidence about how the two law firms propose to charge?

MR HODGE:   Nothing that I can immediately think of, but ultimately, I suspect Mr Foreman will be the person best placed to assist your Honours in relation to that when he addresses that.

STEWARD J:   It is just that without that kind of nuanced detail, the question that was posed at such a high level of generality has a degree of artificiality about it.

MR HODGE:   It is only artificial in the sense that this will not provide – and nobody says that this will provide – a final answer at the conclusion of the proceeding as to whether or not a solicitors’ CFO would actually be made in this case.  But it is not artificial in the sense that there is, at this stage in the litigation, a point of principle which is joined between all of the parties, which is as to whether – however it is outworked, whatever the evidence is as to where the profit lies – there is any power on behalf of the Federal Court to be able to order a solicitors’ CFO.

Then, as an anterior step to that, there is also the issue as between us as to whether there is any power of the court to make a CFO.  Then, as a now further anterior question to that, there is the notice of contention raising whether Brewster should be reopened in order to say whether or not it should be possible to make a commencement CFO rather than a settlement CFO.  All of those things, in our submission, will not turn on the specifics of the particular way in which profit is incorporated into the charging regime.  But we accept and recognise that the court needs to be armed with as much detail as it can about these things at the stage of which we are at.

Can I return to section 33V(2).  It follows, in our submission, that this – as I have indicated already – that the approach to construction that we have adopted in relation to section 33V(2) is consistent with the reasons of the plurality in Brewster and, in particular, if I can take your Honours to that authority, the citation is BMW Australia Limited v Brewster (2019) 269 CLR 574. If your Honours go to page 600 of the report, where there is a heading “Textual considerations”, there the plurality is looking at the textual approach to 33ZF. At paragraph 50, what the Court says is:

The focus of the power conferred on the court by the text is upon ensuring, that is, making certain by the order, that justice is done in the proceeding as between the parties to it.

Now, that focus on “in the proceeding” follows from the qualifying words at the end of 33ZF, but our submission is, in relation to 33V(2), the same process of reasoning applies where the qualification to the exercise of the power in 33V(2) is the approval of the settlement in 33V(1), which is the compromise of the rights of the applicant and group members, as against the respondent.

Where the approval of settlement in representative proceedings under section 33V(2) is part of the court’s protective or supervisory jurisdiction, analogous to the court’s supervisory role in approving settlements on behalf of infants or those who need a guardian, the court must consider whether the terms of the settlement is in the interests of the group members, as their interests are the ones that would be protected first by ensuring that the settlement that is approved under 33V(1) is appropriate, and, second, in relation to the distribution to them of the settlement proceeds under 33V(2).

Considered in that way, 33V(2) would not extend to creating a new right on the part of a funder to receive a proportion of the settlement sum on the premise of what the funder has done in the past, in funding the litigation, pursuant to a contractual relationship that it has with others, including the applicant and funded group members.

BEECH-JONES J:   Would the same observation apply to costs and disbursements incurred by the solicitor solely under an agreement with the lead applicant?

MR HODGE:   No, because ‑ ‑ ‑

BEECH-JONES J:   The difference is?

MR HODGE:   The difference between those two situations is that – there are two differences.  The first difference is, in that situation, what has been incurred by the solicitor or what has been undertaken by the solicitor is work pursuant to a contractual relationship, and there is a debt that already exists as at the point in time when the power under 33V(2) comes to be exercised.  The question for the court, in exercising that power in relation to a liability that has already come into existence on the part of some members of the group, is whether that liability as it exists ought be shared amongst all of the group members.  And then, that ties into the second difference, which is ‑ ‑ ‑ 

BEECH-JONES J:   Stopping there, why is that a difference?  Is not the funder – depending on the form of arrangements with the lead applicant or whoever, there may be a contract for the fee, it might be contingent on various things, and they have done work, presumably by putting money forward.

MR HODGE:   No, because the way in which a CFO works – or the premise of the CFO is that the funder will have a contract with the applicant and with any funded group members that will, presumably, require the applicant and funded group members to apply for an order under 33V(2), or under whatever is the equivalent State regime, and to seek, for the provision by the court, of an amount to be paid to the funder, which is the commission that is to be paid to the funder.  But there is not a contractual right that already exists on behalf of the funder in relation to that money.

It is the exercise of the power of the court that has to summon into existence the amount that is to be paid to the funder, as distinct from an FEO, where, for example, the funded group members and the applicant may have agreed that they are to pay X amount of money to the funder in the event of a successful judgment and, in that circumstance, then the question for the court exercising the power under 33V(2) – where there is already a debt that exists to the funder and that debt is owed by the applicant and the funded group members – is whether their debt should, effectively, be shared amongst the unfunded group members as well.  So, that is the distinction that exists between those two things.

BEECH-JONES J:   So, you are drawing a distinction that if you have an existing legal obligation to pay an amount to a limited group, 33V(2) would authorise spreading that liability to a wider group?

MR HODGE:   Yes, that is the ‑ ‑ ‑

BEECH-JONES J:   Okay.  I am sorry, I cut you off – you were going to say two distinctions.

MR HODGE:   The second distinction is – as is referred to in the judgment of the Chief Justice in Brewster – there is also a principle in relation to the distribution of legal costs that where one plaintiff incurs expenses in relation to the bringing in of a fund, that it is then possible for the court to distribute the costs or expenses that have been incurred by that plaintiff amongst all of the people who are the beneficiaries of the fund.

But those things are distinct from the situation that we are talking about, which is not about doing justice as between the applicant and the unfunded group members, it is about doing justice between the funder and the unfunded group members – that is, it is the funder who is asserting, I ought have a right against the group members that is brought into existence only by the exercise of this power under section 33V(2), and where the premise of it is only that there has been a fund that has come into existence by virtue of the compromise of the rights.

Our submission is those are conceptually distinct things and the question for the court is, necessarily, whether the power – the wide power in section 33V(2) – extends to doing the second thing, to bringing into existence rights of the funder as against group members.

Nothing in the specific context of 33V would suggest that that is the breadth that ought be given to 33V(2), because it shears it from the context of 33V(1), and also, read in the context of the whole of Part IVA and the protective jurisdiction of the court, at the stage at which a CFO is being made, there is no interest that an unfunded group member has in having part of their share of the proceeds paid over to a funder who has no legal right against them or against anybody else for that money, which is the distinction with an FEO, where the funder has a legal right as against the funded group members and the applicant, and what is being dealt with is the applicant and funded group members’ liability and whether that liability that exists is to be shared.

EDELMAN J:   It is essentially an argument that the words “just” or justice “with respect to the distribution of any money” operate more narrowly than one would, without the context of 33V(1) and other provisions, otherwise expect them to operate.  They operate to include an FEO but to exclude CFOs.

MR HODGE:   Yes.

EDELMAN J:   That is exactly, is it not, what the plurality in Brewster said they were not doing. I mean, at 48, the plurality in Brewster said:

That conclusion can be reached without reliance upon any implication to narrow the scope of their operation.

MR HODGE:   Yes, but our – and, again, it may be that, ultimately, I cannot take this any further than the submission I have made, but our argument is it is not a question of narrowing, by implication, the scope of 33V(2), rather, it is a case of reading 33V(2) in the context of the specific task that is being undertaken there, where you have already had the settlement that compromises the rights and what is being dealt with is doing justice in relation to that settlement sum, which is a sum that is due to the applicant and group members, not due to anybody else.

Can I turn, then, textually, to section 33Z.  So, this is – again, your Honours will have your own copies of this – at page 218 of volume 1 of the joint bundle of authorities.  Your Honours will see, in relation to section 33Z, that the chapeau of subsection (1) provides that:

The Court may, in determining a matter in a representative proceeding, do any one or more of the following –

Before I come to the subparagraphs, let me just address the meaning of the chapeau.  The term “matter” is not defined but is used throughout the Act.  We accept the submission that is made by the respondent, which is based on the reasoning of Justice Lee, which is that where it uses “matter” in subsection (1), what is being referred to is an issue in the proceeding.  But, necessarily, that cannot be something broader than the constitutional sense of “matter”.

So, what is being dealt with in section 33Z(1) is that there is a proceeding that is constituted before the court; there are the parties to that proceeding, which are constituted by the applicant and the respondent; and, pursuant to the provisions of Part IVA, the rights of group members are also being resolved to the extent that there are common questions within that proceeding.  What 33Z(1) provides for is giving the court powers to determine the issues in relation to the proceedings so constituted, to which the funder is not a party.

Then, one sees that subparagraphs (a) to (f) provide for various ways in which the court can go about determining the issues that will arise in the proceedings between the parties – it can:

determine an issue of law –

it can:

make a declaration of liability –

it can:

grant any equitable relief –

it can:

make an award of damages –

and, subsection (g), which is the one relied upon:

make such other order as the Court thinks just.

It is making “such other order as the Court thinks just” in relation to the resolution of an issue in the proceeding where the parties to the proceeding are the applicant and the respondent, with the rights of the group members as against the respondent, to the extent that there are common question also incorporated into the resolution of those proceedings.

That is a distinctly different thing from saying that what (1)(g) enables is to then also make an order as against group members – unfounded group members – imposing upon them a liability that does not otherwise exist, other than by the exercise of 33Z(1)(g), and is not necessary for the resolution of an issue in the proceedings.

That is, it is not said that one needs to make a common fund order at the conclusion of the proceeding in order to resolve an issue in the proceedings.  And so, for that reason, in our submission, textually, (1)(g) is not the source of a power to introduce a common fund order at some point in time.  It does not support a free-standing right for non-parties to approach the court and make claims on the judgment sum.

And one could consider it or turn it around by thinking about it in this way:  if a funder was to seek to be joined to the proceeding and to assert that it has a chose in action, as against unfunded group members, and that chose in action was premised upon – whether it is an analogy with the position of trustees and liquidators in relation to secured property, or an analogy with maritime salvage, it is the assertion of a legal right at law or in equity, and the funder sought to have that resolved.  That would then be an issue in the proceeding.

But if that issue was determined against the funder, that is, it was determined that the funder had no right in law or equity as against the unfunded group members, on the construction advanced by our friends, nevertheless, the court could then make a common fund order under section 33Z(1)(g), even though it has resolved the issue and determined that there is not any right.  It could simply do away with that resolution by determining that it is just, in any event, in order to provide for that payment.

STEWARD J:   So, your point is that, absent the funder being a party, the CFO is necessarily extraneous to the act of resolving a representative proceeding?

MR HODGE:   And if the founder was a party, and then they made a claim based on some pre‑existing legal rights, it would be a surprising construction of 33Z(1) to say that the resolution is they do not have any of the legal rights for which they have agitated, but, instead, an order will be made, in any event, conferring on them a right to that judgment sum.

EDELMAN J:   You have wrapped up that conclusion in your premise.  I mean, the premise is:  what are the legal rights that justice requires?  Those legal rights might be rights arising from salvage, or trustees’ rights, or whatever, but they might be broader than that.  That is the premise of the question that is raised, is it not?

MR HODGE:   It is not the question that is raised, and the reason I say that is because what is not argued before this Court, but which one could foresee might ultimately become an issue, is whether, in common law or in equity, there ought to be a development of some principle that would establish a right of a funder, as against unfunded group members, resulting from the funding of a class action.  And then the source of the legal right would be the outworking by this Court or other courts of that legal right.

But that is distinct and different from a situation where it said there is not a development of a right, instead, we just source the right by creating it from 33Z(1)(g).  So, to adopt – your Honour Justice Edelman in Brewster referred to that distinction between what is, in truth, conferring legal rights versus, on the other hand, not conferring legal rights but the process of the courts recognising the existence of rights, and what I am talking about, and what we are submitting about, and what, necessarily, the respondents need to contend for, is the first one.

That is, they have to contend for the conferral of rights by this section, because they are not making an argument before this Court that the outworkings of principles of law and equity result in there already being some right.  If there was already some right, we would be dealing with a different situation, because then we would be talking about how the court goes about dealing with and managing and distributing a fund in circumstances where there is a pre‑existing liability.

BEECH‑JONES J:   But does it have to be a right in the funder against all group members, or a right in the funder against the representative party, on your argument?

MR HODGE:   It only needs be a right as against the representative party, but the consequence of that will necessarily limit what it is that is to be distributed.  That is, the applicant does not have a right to what is the settlement sum reflecting the rights of the group members.

BEECH‑JONES J:   So, if the funder said the representative party will pay a funding premium of $3 million, subject to that being approved by the court – would that be good enough?

MR HODGE:   It would be sufficient that there is a liability on the part of the applicant for it then to be necessary – assuming we are dealing with it under – moving back to 33V, rather than 33Z(1)(g), it might be that it is a different provision that would need to be considered in relation to a judgment – but let us say that there was an agreement between the funder and an applicant which just said:  here is a fixed sum premium, so there is a liability, then it is not a question ‑ ‑ ‑ 

BEECH‑JONES J:   But not payable unless approved by the court – unless the court approves it.  It is payment from the other – a contingent liability, in that sense.

MR HODGE:   In that hypothetical situation, and assuming that that is a valid contract as between applicant and funder, that is, that the applicant can contract to pay an amount that is to be determined by the court and is then contractually bound, and then at that point in time, the court having found the applicant is contractually bound, then there would be a question for the court as to what extent, if any, it would exercise or wish to exercise the power under 33V(2) to distribute that entitlement amongst all group members.  But it does not follow that it would have to do it, it would then make a decision as to whether it was just to distribute whatever that cost was.

BEECH-JONES J:   But you accept it could?

MR HODGE:   At that point in time, yes.  I do not ‑ ‑ ‑ 

BEECH-JONES J:   So, your argument says, there has to be some right in law and equity as against the representative party, but once there is, it can spread the liability amongst the rest of the group?

MR HODGE:   In effect, that is an FEO – that is, you have an order that provides for an amount, and then the court has to make a determination as to whether it will distribute that amount amongst the group members.

GORDON J:   Distribute the liability.

MR HODGE:   The liability amongst the group members.  And that is – your Honour’s point is an important one, which is it is not distributing or creating a right on the part of the funder.  The liability exists on the part of the applicant.  It is distributing that liability that the applicant has.  Then, if it is not distributed, the applicant still has the liability; the applicant is still indebted to the funder for $3 million, because there is a contractual right and it would only have been reimbursed to whatever limited extent that has been provided for by the court under 33V(2).

The last point I will make, just about the specific text of 33Z(1)(g), is – if your Honours also look at 33ZJ, you will see that that provides a mechanism by which the representative applicant can apply to the court for an order that any damages awarded to class members be applied to reimburse the representative applicant for legal costs incurred by the applicant but not recovered from the respondents.

We point to that only to emphasise the context of the chapeau in 33Z(1), which is, 33Z(1) is focused on the resolution of issues – those issues being issues between the parties to the proceeding – and then there are specific procedural sections that deal with other issues that might arise in relation to the distribution of or the dealing with legal costs.

Then, in terms of considering another relevant consideration beyond the text itself, which is the purpose of Part IVA – your Honours, there should be a supplementary joint bundle of authorities from us, which includes the explanatory memorandum in relation to the Amendment Act, do your Honours have that?  I have copies of the explanatory memorandum, if that would assist.

GAGELER CJ:   Not all of us have it.

EDELMAN J:   This is the 1991?

MR HODGE:   Yes.

GAGELER CJ:   Not all of us have it.  If you want us to look at it now, you should hand it up.

MR HODGE:   Thank you, your Honour.  Your Honours will see this is the explanatory memorandum to the Federal Court of Australia Amendment Bill 1991, which is the Bill that introduced Part IVA into the Act.  If your Honours go to page 2 and the outline.  Could I invite your Honours to read paragraph 3 of the outline.  In our submission, what that recognises is that the purpose of Part IVA is largely procedural, as opposed to intended to create substantive legal rights.

It establishes a process to enhance access to justice by the collectivisation of claims that might not be economically viable as individual claims and to increase the efficiency of the administration of justice by allowing a common binding decision to be made in one proceeding rather than multiple.  But none of that leads to the conclusion that it is necessary for the purpose of the Act to construe sections 33V(2) or 33Z(1)(g) as conferring a power to create this new right for litigation funders to obtain part of the judgment sum.

What I would then submit, in concluding our primary submissions in relation to ground 1, is one of the considerations that is referred to, effectively, by inference, below, is the considerations that have led the Full Court to conclude that it is necessary or appropriate to have CFOs.  So, when your Honours go, as you will have done, and have look at the decision of the Full Court in Elliott-Carde, there is an emphasis that is put on policy issues such as access to justice and ensuring that there is a market for litigation funding.

But, in our submission, those kinds of policy considerations about generalising, in order to look at the functioning of the class actions market in general, are something that is for Parliament to do.  They are not something that is relevant to the exercise of power under 33V or under 33Z which, in each case, is directed to the exercise of power, unsurprisingly, for the specific case that is before the court and doing justice in relation to that case, rather than considering these wider issues.  So, those kinds of considerations are not things that it is necessary or appropriate to have regard to in reaching the conclusion as to how to construe the text of 33V and 33Z.

Your Honours, I now propose to move to deal relatively briefly with the notice of contention, or the first ground of the notice of contention.  As your Honours know, what the respondents and the association in support of them seek is to reopen the decision in Brewster.  Can we make a few submissions about that, at this stage.

The first and most significant issue is that, in our submission, what is not established before this Court is that the third John consideration has been satisfied.  That is, there is nothing that has established that the reasoning of the Court in Brewster and the resolution of the issue in Brewster is something that has been productive of substantial inconvenience, therefore suggesting that it ought to be reconsidered.

Notwithstanding that we object to the affidavit, can I note some things about the evidence that has been put before the Court.  The evidence suggests at least two things.  The first is that for litigation funders dealing with the question of whether they might or might not be able to obtain a CFO that, at least at a level of theory – because they have to weigh and risks and think about their return on investment – they would be inclined to seek a higher commission rate if they thought that there was a risk as to whether they could get a CFO as opposed to if they were certain that they could get a CFO.

It does not appear, as we read it, that there is evidence that in fact there has been some material increase in commission rates since Brewster, but that is no doubt something – or the situation in relation to the market is no doubt confused by two things.  The first is that GCOs have been introduced in Victoria.  So, the consequence of that is that the market as a whole is going to be something that is informed by the fact that class actions are commenced in the Supreme Court of Victoria, and in the Supreme Court of Victoria the competitors who are participating in that market as suppliers of litigation funding are no longer just litigation funders per se, they are also solicitors, and all of that is going to be noise that affects the market.

The second consideration is that – as the association has noted and Justice Beach has observed in relation to the practice of the Federal Court –notwithstanding Brewster and that a CFO and commencement CFO cannot be made, nevertheless there is an indication from the Bench of a willingness to make CFOs.  Therefore, one would expect that the risk that is appreciated by funders in making funding decisions is going to be something that is going to be confused since Brewster.  The consequence, though, is there is in evidence, in our submission, that would suggest that there is some inconvenience that has been produced as a consequence of Brewster that would suggest that this Court ought to go back and revisit it.

The second point is, what that really invites is a consideration, in a very detailed way, of larger market issues in relation to the existence or otherwise of common fund orders as to whether the outcome in Brewster is something that does or does not enhance access to justice, as opposed to being something that litigation funders find undesirable.  That is not something that is straightforward and not something that this Court is going to be in a position to be able to interrogate or resolve.

Let me give an example that flows directly from Brewster.  As your Honours know, there were two cases that were before the Court in that case.  One was Brewster, which came from the Supreme Court of New South Wales, the other was Lenthall v Westpac that came from the federal court.  Lenthall v Westpac has since resolved, and Justice Lee has published a judgment in which his Honour has approved the settlement in relation to that case.

But one of the issues that arose in relation to that case, when his Honour came to approve it, was the very low rate of registrations in relation to the class.  So that at the time his Honour came to approve it, there were only 13,000 registrations where it was at least conceivably possible that the total number of people in the class was 88,000, although that was a point that Westpac took issue with.  His Honour, as a consequence of that, then provided for a further notice to be issued to see if the number of registrations could be increased, and we do not know the outcome of that because there is no published judgment in relation to it.

The point about this is that thinking about the lifespan or the life outcome of any particular class action with the absence or presence of a CFO at the beginning then leads to a question about whether or not it would have been better or worse to have a book billed in relation to that case and what the ultimate outcome is for unfunded group members in a situation like that because, of course, the compromise or the resolution of the open class action is to resolve or compromise all of those group members rights, whether they receive any money or not.  The question – or the larger policy question – that that gives rise to is whether that is a good or bad outcome and therefore ties into the question of whether or not, when we talk about inconvenience in terms of the result of Brewster, that is genuinely something that the Court ought to be concerned about and revisit or not.

In our submission, nothing before the Court establishes or satisfies the third criterion in relation to John.  The other issues that are raised by our friends, in relation to Brewster, are that there were errors that were made by the plurality and Justice Nettle and Justice Gordon in relation to the conclusion that they came to.  Can I deal with those very briefly, but appreciating that they will be developed orally and then I will return to them in reply.

The first contention that is made by the respondents is that there was an inadequate consideration, by the plurality, of the central concern of Part IVA to facilitate access to legal remedies.  In our submission, this is something that was considered and dealt with by the plurality; it was dealt with relevantly at pages 611 to 612, and also dealt with by Justice Nettle at page 624 and by Justice Gordon at pages 628 to 631.  The second contention is that the majority did not properly consider the presumption that the legislation is always speaking.  However, that was a point that was expressly put to the Court and considered by the plurality of paragraph 35 on page 596.

The third contention was that the majority was wrong to reduce section 33ZF to a mere gap filling provision.  In our submission, all of the judgments in the Court, both the ones in favour of the making of commencement CFOs and the ones against commencement CFOs, proceed by an approach of construing the text of the legislation.  They come to a different conclusion about it, but there is nothing involved in the approach of the plurality, or Justice Nettle or Justice Gordon that is a departure from orthodox principles of statutory construction. 

The fourth contention is that there is some failure, of four of the five majority justices, to address distinctly and comprehensively the extent of the power to make a CFO at settlement or judgment and therefore the Court fell into error.  With respect, it is not the case, and neither the plurality nor Justice Nettle reasoned by concluding that 33ZF did not empower the making of a commencement CFO on the basis that there was or was not a power to make a CFO using 33V(2) or 33Z(1)(g) or some other provision.  That is, there was no error in their construction because they did not consider that, because it was not relevant to the way in which they went about their textual construction, and it was not an issue that was raised in our submission.

Your Honours, I think I will finish well ahead of time.  If that is convenient, I will not deal with the association submissions at this point.  I

will see how that develops and whether there is anything further that needs to be said about that.

GAGELER CJ:   Thank you, Mr Hodge.  Mr Foreman.

MR FOREMAN:   Thank you, your Honours.  Can I begin by attempting to provide some assistance in relation to the detail of what occurred here, and before addressing the question of principle in terms of, for example, your Honour Justice Gordon’s question about such detail as there is of the funding and billing arrangements.

If your Honours have the appellant’s book of further materials, at tab 2, starting at page 10 – is an affidavit of Ms Banton of 7 March 2023, which was read in relation to this application.  If your Honours turn to – using the pages at the top – page 16, at the bottom is paragraph 17, the indication that if:

the terms of the Proposed Notice are approved –

Ms Banton intends:

with the agreement of the Applicant –

to:

amend the terms of Banton Group’s existing costs agreement –

And the existing costs agreement begins on page 49, being annexure AKB‑10.  The substance begins on page 50.  At point 5 on the page there is an indication that this is a costs agreement under the Legal Profession Uniform Law (NSW). At the bottom, at clause 3, there is a reference to a funding agreement and the arrangements there in place for billing. Namely, the bills are issued to the applicant, but if the funder does not pay them the firm will not enforce the costs against the applicant.

Just pausing there – and I will indicate this by reference to the carriage motion judgment – as your Honours would have seen from our submissions, two class actions were commenced, each of which had the benefit of litigation funding, and there is some detail about the funding arrangements in the carriage motion judgment and I have some copies to hand up in a moment.

Your Honours, what happened was that his Honour Justice Lee determined that the two applications or two proceedings should be consolidated, and the result of the discussions between the solicitors through the consolidation process was to apply for what they have called a solicitors’ common fund order.  Some detail about that is provided in the proposed addendum to this costs agreement, which appears at page 63.  In particular, your Honours will see clause 2 proposes amendments to:

be inserted after clause 3 –

Which indicates an instruction for the solicitors:

to seek Court orders establishing a funding arrangement in substitution for the ILP Funding Agreement described in Section 3 above.

And there is a reference to a specific instruction, if your Honours see subclause (c):

at an appropriate stage of the proceeding – to the extent permitted by law seek orders that or to the effect that:

i.legal costs and disbursements be shared between the co‑applicants and the group members –

On a pro rata basis which is described as “costs reimbursement”, and then the following:

we and Shine Lawyers be remunerated for our risks in funding the legal costs and disbursements (pursuant to the agreement described in this clause 3A) by payment of such percentage of the sum recovered as a result of the Consolidated Proceeding –

STEWARD J:   This has yet to be executed?

MR FOREMAN:   Yes.  Sorry, your Honour, the evidence was that Ms Banton would cause this to be executed after the notice was approved.  I do not know whether, after the Full Court, it has been executed or not.  I cannot tell that to your Honour.

GORDON J:   Just so I am clear, the amounts to refer to as clause (c)(i) reflect the rates that are set out in the agreement that are the subject to the agreement that you took us to on page 51.

In terms of where that argument will go, your Honours, when I come to deal with paragraphs 85 to 90 of the plurality, which is the only place where they come back to the question of what might be available on settlement or judgment, and they direct attention to the problem of free riding, and they express a preference for an FEO – we would submit, not a bright line rule – what you will not find in 85 to 90 is any analysis of the

consideration of justice which was identified correctly at 41 and deferred for another day.

So, the point I sought to reach, your Honours, is that it is tolerably clear the plurality were never considering 33V or 33J.  They were correctly identifying there is a consideration of justice which would see people who provide valuable services which produce a fund being appropriately rewarded, but that consideration of justice they have simply not addressed at 85 to 90.  Is that a convenient time, your Honours?

GAGELER CJ:   How much time do you expect to take tomorrow morning, Mr Gleeson?

MR GLEESON:   Your Honours, we are running ahead because of the expedition of the appellants, not us.

GAGELER CJ:   I understand.  You propose to take the entirety of your allotted time, which would have you finishing when?

MR GLEESON:   At the moment, we are finishing at 3 o’clock tomorrow.  I will see, if possible, if we can finish by lunchtime.

GAGELER CJ:   All right.  Then, the Court will adjourn.

AT 4.14 PM THE MATTERS WERE ADJOURNED
UNTIL WEDNESDAY, 5 MARCH 2025