FEDERAL COURT OF AUSTRALIA
Tham v Australian Capital Territory [2024] FCA 1508
File number: VID 705 of 2022 Judgment of: SNADEN J Date of judgment: 18 December 2024 Date of publication of reasons: 20 December 2024 Catchwords: REPRESENTATIVE PROCEEDING – settlement approval application under s 33V of the Federal Court of Australia Act 1976 (Cth) – whether the proposed settlement is fair and reasonable in the interests of group members – whether orders under pt VAA of the Federal Court of Australia Act 1976 (Cth) are necessary in respect of certain evidence – settlement approved. Legislation: Fair Work Act 2009 (Cth) s 50
Federal Court of Australia Act 1976 (Cth) s 33V
Cases cited: Bradshaw v BSA Ltd (No 2) [2022] FCA 1440
Caason Investments Pty Ltd v Cao (No 2) [2018] FCA 527
Division: Fair Work Division Registry: Victoria National Practice Area: Employment and Industrial Relations Number of paragraphs: 30 Date of hearing: 18 December 2024 Counsel for the Applicant: Ms M Szydzik SC with Mr D Murphy Solicitor for the Applicant: Gordon Legal Counsel for the First Respondent: Ms H A Tiplady Solicitor for the First Respondent: ACT Government Solicitor Counsel for the Second Respondent: Mr J Entwisle Solicitor for the Second Respondent: MinterEllison ORDERS
VID 705 of 2022 BETWEEN: YING YING THAM
Applicant
AND: AUSTRALIAN CAPITAL TERRITORY
First Respondent
CALVARY HEALTH CARE ACT LIMITED (ACN 105 304 989)
Second Respondent
ORDER MADE BY:
SNADEN J
DATE OF ORDER:
18 DECEMBER 2024
THE COURT NOTES THAT:
A.By operation of order 14 below, the applicant is to file a redacted version of the affidavit affirmed herein by Mr Andrew Grech on 4 December 2024; and
B.Access (including public access) to that version of that affidavit will not be affected by the operation of order 13 below.
THE COURT ORDERS THAT:
Settlement approval
1.Pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth) (the Act), the settlement of this proceeding be approved on the terms set out in:
(a)the Deed of Settlement between the Applicant, the Respondents and Gordon Legal annexed as ‘AG-1’ to the affidavit of Andrew Grech dated 10 October 2024 (Deed); and
(b)the Settlement Scheme (Scheme), in the form set out in Annexure A of the Deed.
2.Pursuant to s 33ZB of the Act the persons affected and bound by the settlement of the proceeding are:
(a)the Applicant;
(b)the Respondents;
(c)Gordon Legal; and
(d)the group members who did not file an opt out notice in accordance with s 33J of the Act or who did file such a notice and have been reinstated as group members pursuant to the process established by orders 12 to 14 of the Court’s orders dated 15 October 2024.
3.Pursuant to s 33ZF of the Act, the parties each have leave to apply to the Court for orders in respect of any issue arising…
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- Case
- [2024] FCA 1508
- Decision Date
CaseChat Overview and Summary
The court considered the fairness and reasonableness of the settlement by reviewing the Deed of Settlement and the Settlement Scheme. The court examined the terms of the settlement, including the compensation amounts, the costs involved, and the process for administering the settlement. The court also reviewed evidence from experts and legal counsel to assess whether the settlement adequately addressed the claims of the group members. In approving the settlement, the court found that it was fair and reasonable, taking into account the benefits to the group members, the costs of litigation, and the overall interests of justice.
The court approved the settlement and appointed Gordon Legal and Hayden Stephens and Associates as joint administrators to oversee the implementation of the settlement. The court also ordered specific payments to be made by the respondents to cover the settlement sum, legal costs, and administration costs. Furthermore, the court approved the costs incurred by the applicant’s solicitors and the administrators. The court dismissed the proceedings upon the filing of a confidential report by the administrators, and it made non-publication orders to protect sensitive information from public disclosure until the conclusion of any potential appeals.
Orders
Orders of the court
Settlement approval
1. Pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth) (the Act), the settlement of this proceeding be approved on the terms set out in:
(a) the Deed of Settlement between the Applicant, the Respondents and Gordon Legal annexed as ‘AG-1’ to the affidavit of Andrew Grech dated 10 October 2024 (Deed); and
(b) the Settlement Scheme (Scheme), in the form set out in Annexure A of the Deed.
2. Pursuant to s 33ZB of the Act the persons affected and bound by the settlement of the proceeding are:
(a) the Applicant;
(b) the Respondents;
(c) Gordon Legal; and
(d) the group members who did not file an opt out notice in accordance with s 33J of the Act or who did file such a notice and have been reinstated as group members pursuant to the process established by orders 12 to 14 of the Court’s orders dated 15 October 2024.
3. Pursuant to s 33ZF of the Act, the parties each have leave to apply to the Court for orders in respect of any issue arising in relation to the administration of the Scheme.
Appointment of Administrators
4. Pursuant to ss 33V and 33ZF of the Act, Gordon Legal and Hayden Stephens and Associates be jointly appointed as the Scheme Administrators, to act in accordance with the Scheme and have the powers and immunities contemplated by the Scheme.
Payment of sums under the Deed
5. Pursuant to ss 33V(2) and 33ZF of the Act:
(a) by 1 July 2025, the First Respondent pay the sum of $25,140,000 into an interest-bearing bank account nominated by the Applicant’s solicitors (the Account); and
(b) by 6 February 2025, the Second Respondent pay the sum of $200,000 into the Account,
as payments in accordance with clause 5.6 of the Deed in respect of the Settlement Sum (as defined at clause 5.1(a) of the Deed).
6. Pursuant to ss 33V(2) and 33ZF of the Act, the First Respondent pay the sum of:
(a) by 6 February 2025, $2,600,000; and
(b) by 1 July 2025, $260,000,
into the Account as a payment in accordance with clause 5.8 of the Deed in respect of the Legal Costs Sum (as defined at clause 5.1(b) of the Deed).
7. Pursuant to ss 33V(2) and 33ZF of the Act, by 1 July 2025 the First Respondent pay the sum of $3,300,000 into the Account as a payment in accordance with clause 5.9 of the Deed in respect of the Claims Assessment and Settlement Scheme Administration Costs Sum (as defined at clause 5.1(c) of the Deed).
Approval of costs pursuant to the Deed
8. Pursuant to ss 33V(2) and 33ZF of the Act, the costs of the Applicant’s solicitors payable under the Deed pursuant to clause 5.1(b) of the Deed in respect of the conduct of the proceeding on behalf of the Applicant and group members be approved in the amount of $2,860,000.
9. Pursuant to ss 33V(2) and 33ZF of the Act, the costs of the Scheme Administrator in respect of the implementation and operation of the claims assessment and settlement scheme process under the Deed pursuant to clause 5.1(c) of the Deed be approved in the amount of $3,300,000.
Approval of amount to be deducted from Settlement Sum pursuant to the Deed
10. Pursuant to ss 33V(2) and 33ZF of the Act, an amount of $20,000 be deducted from the Settlement Sum to reimburse the Applicant for her time and out-of-pocket expenses in performing her role as representative of group members in the conduct of the proceeding.
Dismissal of the proceeding
11. Pursuant to ss 22, 23 or 33ZF of the Act, and/or r 1.32 of the Federal Court Rules 2011 and/or the Court’s inherent jurisdiction and upon the date that the Scheme Administrators file a confidential report with the Court in accordance with clause 9.5 of the Deed, these proceedings be dismissed (without the need for any further order).
Costs
12. There be no order as to costs in the proceeding.
Non-publication orders
13. Pursuant to s 37AF(1) of the Act, until the conclusion of the period identified in the table below, there be no publication or other disclosure of the following sections of the affidavit of Andrew Grech dated 4 December 2024, save to the extent identified in the table below, on the ground that it is necessary to prevent prejudice to the proper administration of justice under s 37AG(1)(a) of the Act:
PARAGRAPH / ANNEXURE
TEXT
PERIOD
ACCESSIBLE BY
64
The value following the words “… calculated a loss of…”
Until the expiry of any appeal period following approval of settlement
The Court and the Respondents [grey highlight]
71
The value following the words “… loss of the class was…”
Until the expiry of any appeal period following approval of settlement
The Court and the Respondents [grey highlight]
77
The values following the words “… 30 November 2022, being…”
Until the expiry of any appeal period following approval of settlement
The Court and the Respondents [grey highlight]
79
In the chapeau, the values following the words “… which affected that range of…”
Until the expiry of any appeal period following approval of settlement
The Court and the Respondents [grey highlight]
83
All words following the sentence ending “… since 1 December 2022”
Until the expiry of any appeal period following approval of settlement
The Court only [yellow highlight]
84
All words in the first sentence following the words “… rather than 4.8 hours per week…”
Until the expiry of any appeal period following approval of settlement
The Court only [yellow highlight]
85
The value following the words “… in a further…” and the values following the words “… the range sat at…”
Until the expiry of any appeal period following approval of settlement
The Court and the Respondents [grey highlight]
87
All words following the first sentence
Until the expiry of any appeal period following approval of settlement
The Court only [yellow highlight]
88
All words in the second sentence prior to “… I determined that…”
Until the expiry of any appeal period following approval of settlement
The Court only [yellow highlight]
89
The value following the words “… the range down approximately…” and the values following the words “… the range to…”
Until the expiry of any appeal period following approval of settlement
The Court and the Respondents [grey highlight]
92
The value following the words “… range was reduced by…” and the values following the words “… reduced the range to…”
Until the expiry of any appeal period following approval of settlement
The Court and the Respondents [grey highlight]
93
Whole paragraph
Until the expiry of any appeal period following approval of settlement
The Court only [yellow highlight]
94
Whole paragraph
(a), (b), (c), (d), (e), (f) and (i), 10 years or until further order
(g) and (h) until the expiry of any appeal period following approval of settlement
The Court only [yellow highlight]
95
Whole paragraph
Until the expiry of any appeal period following approval of settlement
The Court only [yellow highlight]
96
Whole paragraph
Until the expiry of any appeal period following approval of settlement
The Court only [yellow highlight]
97
All words in the second sentence
Until the expiry of any appeal period following approval of settlement
The Court only [yellow highlight]
117 – 118
Whole paragraph
Until the expiry of any appeal period following approval of settlement
The Court only [yellow highlight]
159(b)
The value following the words “…for this work were…”
5 years or until further order
The Court only [yellow highlight]
161(a)-(d)
The values in each sub-paragraph
5 years or until further order
The Court only [yellow highlight]
Counsel Opinion dated 4 December 2024 (AG-5)
Whole document
10 years or until further order
The Court only [yellow highlight]
Letter of instruction to Ms Rosati (AG-6)
Whole document
5 years or until further order
The Court only [yellow highlight]
Expert report of Ms Rosati dated 2 December 2024 (AG-7)
Whole document
5 years or until further order
The Court only [yellow highlight]
Gordon Legal’s and Hayden Stephens & Associates’ estimates of acting as Scheme Administrators (AG-8)
Whole document
Until the expiry of any appeal period following approval of settlement
The Court only [yellow highlight]
The powerpoint presentation to the respondents (AG-9)
Whole document
Until the expiry of any appeal period following approval of settlement
The Court and the Respondents [grey highlight]
The model (AG-10)
Whole document
Until the expiry of any appeal period following approval of settlement
The Court and the Respondents [grey highlight]
The legal costs agreement and disclosure statement signed by Dr Tham on 1 August 2022 (AG-13)
Page 13 – all values in the second and third columns
Page 16 (table at paragraph 15) – all values in the second and third columns
5 years or until further order
The Court only [yellow highlight]
14. By the close of business of Friday, 20 December 2024, the applicant file a version of the affidavit affirmed by Mr Andrew Grech on 4 December 2024 that is redacted in a way that conceals the parts of it that are the subject of order 13 above.
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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