Leonie's Travel Pty Limited v Air New Zealand

[2013] FCA 73

FEDERAL COURT OF AUSTRALIA

Leonie’s Travel Pty Limited v Air New Zealand Ltd [2013] FCA 73

Citation:

Leonie’s Travel Pty Limited v Air New Zealand [2013] FCA 73

Parties:

LEONIE’S TRAVEL PTY LIMITED ACN 050 214 152 v AIR NEW ZEALAND LTD (ARBN 000 312 685)

File number:

NSD 2449 of 2006

Judge:

ROBERTSON J

Date of judgment:

7 February 2013

Catchwords:

PRACTICE AND PROCEDURE – approval of settlement judgment

COSTS –  

Legislation:

Federal Court of Australia Act 1976 s 33V

Date of hearing:

7 February 2013

Place:

Sydney

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

5

Counsel for the Applicant:

Mr NJ Beaumont

Solicitor for the Applicant:

Slater & Gordon

Counsel for the Fourth Respondent:

Mr RR Stitt QC with Ms CO Gleeson

Solicitor for the Fourth Respondent:

Corrs Chambers Westgarth

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 2449 of 2006

BETWEEN:	LEONIE'S TRAVEL PTY LIMITED ACN 050 214 152 Applicant
AND:	AIR NEW ZEALAND LTD (ARBN 000 312 685) Fourth Respondent

JUDGE:	ROBERTSON J
DATE OF ORDER:	7 FEBRUARY 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Pursuant to s 33V of the Federal Court of Australia Act 1976 (the Act) the Court approves the settlement contained in the Deed of Settlement of the proceedings between the Applicant and 73the Fourth Respondent on the terms set out in the Deed of Settlement, a copy of which is exhibited to the affidavit of Steven Lewis sworn 4 February 2013 (the Deed).

2.Pursuant to s 33ZB and s 33SZF of the Act, the Court declares that the persons affected and bound by these orders are the Applicant, the Fourth Respondent and all other group members who have not opted out under s 33J of the Act.

3.Pursuant to s 33ZF of the Act or otherwise, the Applicant be authorised nunc pro tunc on behalf of group members described in Order 2 to enter into and give effect to the Deed and the transactions thereby contemplated for and on behalf of those group members.

4.Pursuant to s 33ZF of the Act, any group member who has not opted out under s 33J of the Act (whether or not the group member is entitled to participate in the settlement contained in the Deed and approved by the Court) is hereby barred from making any claim (other than any proceeding to enforce the Deed) against the Fourth Respondent in respect of or relating to the subject matter of these proceedings.

5.Pursuant to s 33Z and s 33V(2) of the Act, the Court approves the payment by the Fourth Respondent to the solicitors for the Applicant, Slater & Gordon, of the sum of $37,141.00 in full and final settlement of all claims by the Applicant and all Group Members for distribution by Slater & Gordon to eligible group members pursuant to the Deed in accordance with its terms.

6.The Applicant’s legal representatives return all documents to the Fourth Respondent’s legal representatives that are affected by the confidentiality undertakings executed on 14 February 2012, 31 August 2012 and 17 October 2012 within 14 days of these orders or within 14 days of the Court issuing a certificate of taxation, which ever is the later.

7.The Fourth Respondent will pay the Applicant’s costs as taxed or agreed (including reserved costs) of these proceedings as between the parties and of no other Respondent on a party and party basis and that:

7.1The indemnity principle will apply to the recovery of those costs, including on a taxation if they cannot be agreed;

7.2The Applicant will claim no costs or expenses incurred in the proceedings between 23 July 2007 and 3 August 2011;

7.3The Applicant will claim no disbursements for counsel’s fees incurred prior to 3 August 2011 or in respect of any work carried out by Counsel prior to 3 August 2011.

8.The proceeding as between the Applicant and the Fourth Respondent be otherwise dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 2449 of 2006

BETWEEN:	LEONIE'S TRAVEL PTY LIMITED ACN 050 214 152 Applicant
AND:	AIR NEW ZEALAND LTD (ARBN 000 312 685) Fourth Respondent

JUDGE:	ROBERTSON J
DATE:	7 FEBRUARY 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The parties seek the approval of the Court under s 33V of the Federal Court of Australia Act 1976 to settle this representative proceeding which has been on foot since 2006.

2. Two affidavits by Mr Steven Lewis, sworn on 11 December 2012 and 4 February 2013 have been read on behalf of the applicant and an affidavit sworn by Michelle Margaret Carr on 12 December 2012 has been read on behalf of the fourth respondent, the only remaining respondent in the proceedings.

3. I approve the settlement of the proceeding. I find that the proposed settlement is fair and reasonable having regard to the claims made on behalf of the group members who will be bound by the settlement. I also find that the proposed settlement has been undertaken in the interests of group members, as well as those of the applicant, and not just in the interests of the applicant and the fourth respondent: see Practice Note CM 17 dated 1 August 2011, especially at clause 11.1.

4. I have had regard in particular to the stage which the litigation has reached; the complexity and likely further duration of the litigation; the fact that there is no opposition to the settlement; and the manner of calculation and the reasonableness of the settlement in light of the best recovery, having regard to the risks of litigation.

5. For these reasons I make the orders set out in the document entitled Final Orders which I initial and place with the papers on the Court file.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.

Associate:

Dated:       7 February 2013