Tate v Westpac Banking Corporation (No 2)

In the matter of Tate v Westpac Banking Corporation (No 2), the applicants sought approval to discontinue the claims against Westpac under section 33V of the Federal Court of Australia Act 1976 (Cth). The applicants had filed their statement of claim on 21 May 2019, and the proceeding shared some commonality with the Australian Securities and Investments Commission v Westpac Banking Corporation proceeding. The applicants amended their statement of claim on 18 October 2019, following the judgment in the ASIC Proceeding. However, the applicants accepted the Offer to Compromise on 27 July 2020, and the Full Court of the Federal Court handed down the ASIC Appeal judgment on 25 February 2020. The applicants’ funding ceased, and they considered whether to continue the proceeding without funding. The court was required to decide whether the proposed discontinuance was fair and reasonable.

The court considered the matters set out in the applicants’ submissions and Mr Slade’s evidence and found that the proposed discontinuance was fair and reasonable. The court noted that the discontinuance sought did not contemplate the release or extinguishment of any of the rights of group members. The court also noted that there was no suggestion that, and no basis upon which, group members could be liable for any costs of the proceedings. The court accepted that it would be contrary to the interests of group members to require the applicants to persist with the litigation when they had lost their funding. The court also noted that the respondent had consented to a proposed declaration to the effect that the discontinuance of the proceedings does not affect any rights of the applicants or any group member in the proceeding to pursue the claims that are the subject of this proceeding in another proceeding.

The court approved the discontinuance of the proceeding pursuant to section 33V(1) of the Federal Court of Australia Act 1976 (Cth). The court also made orders to keep certain contents of annexures confidential, to vacate certain costs orders, and to release the balance of the amount held by the Court as security for costs of the proceedings. The court declared that the discontinuance of the proceeding did not affect any rights of the applicants or any group member in the proceeding to pursue the claims that are the subject of this proceeding in another proceeding. The court made no order as to costs of this application.