Webb v GetSwift Limited (No 3)

Case [2018] FCA 1133

FEDERAL COURT OF AUSTRALIA

Webb v GetSwift Limited (No 3) [2018] FCA 1133

File number: NSD 580 of 2018
NSD 1112 of 2018
Judge: LEE J
Date of judgment: 31 July 2018
Catchwords:

REPRESENTATIVE PROCEEDINGS – common fund order – order made when the opportunity afforded to group members to later opt out of the proceeding – no need for prior notice to group members when this course would cause multiple notices, unnecessary expense and further delay

COSTS – indemnity costs orders against a respondent to an interlocutory application where conduct caused unnecessary costs contrary to the overarching purpose –lump sum costs – where evidence as to the reasonableness of costs claimed was not in strict compliance with Practice Note but is sufficient to establish costs claimed were reasonably incurred on a “broad brush” approach to quantification – order made

Legislation: Federal Court of Australia Act 1976 (Cth), Pts IVA, VB, ss 37M(3), 33Y(2), 43
Cases cited:

Bayley & Associates Pty Ltd v DBR Australia Pty Ltd [2014] FCA 346

Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 506; (2012) 290 ALR 288

Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225

Coshott v Burke (No 2) [2018] FCAFC 81

Dowdell v Knispel Fruit Juices Pty Ltd [2003] FCA 1276

Fewin Pty Ltd v Burke (No 3) [2017] FCA 693

Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52

Knight v F P Special Assets Limited (1992) 174 CLR 178

Oasis Hotel Ltd v Zurich Insurance Co (1981) 124 DLR (3d) 455

Oshlack v Richmond River Council (1998) 193 CLR 72

Perera v GetSwift Limited [2018] FCA 732

Perera v GetSwift Limited (No 2) [2018] FCA 909

Re Bendeich (No 2) (1994) 53 FCR 422

Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (unreported, Federal Court, French J, 3 May 1991);

Webb v GetSwift Limited (No 2) [2018] FCA 994
Date of hearing: 20 & 25 June 2018
Date of last submissions: 10 July 2018
Registry: New South Wales
Division: General Division
National Practice Area: Commercial and Corporations
Sub-area: Corporations and Corporate Insolvency
Category: Catchwords
Number of paragraphs: 41
Counsel for the Applicant: Dr O Bigos
Solicitor for the Applicant: Phi Finney McDonald
Counsel for the Respondents in NSD580/2018: Mr A Shearer
Solicitor for the Respondents in NSD580/2018: Quinn Emanuel Urquhart & Sullivan
Counsel for the Respondent in NSD1112/2018: Mr C M Tam (25 June 2018)
Solicitor for the Respondent in NSD1112/2018: Squire Patton Boggs

ORDERS

NSD 580 of 2018
BETWEEN:

RAFFAELE WEBB

Applicant
AND:

GETSWIFT LIMITED (ACN 604 611 556)

First Respondent

JOEL MACDONALD

Second Respondent

SQUIRE PATTON BOGGS (AU)
Respondent to the Interlocutory Application

JUDGE:

LEE J

DATE OF ORDER:

31 JULY 2018

1.Pursuant to Rule 40.02(b) of the Federal Court Rules 2011 (Cth) the respondent to the Interlocutory Application, Squire Patton Boggs (AU), is to pay the applicant’s costs and associated disbursements of the Interlocutory Application filed on 25 May 2018, the Amended Interlocutory Application filed…

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AGLC
Webb v GetSwift Limited (No 3) [2018] FCA 1133
Case
[2018] FCA 1133
Decision Date

CaseChat Overview and Summary

In Webb v GetSwift Limited (No 3), the applicant, Mr Webb, sought a common fund order and indemnity costs against GetSwift Limited. The proceedings involved a representative proceeding where Mr Webb sought to represent a class of individuals who had entered into contracts with GetSwift Limited. The legal issues before the court were whether the common fund order should be made when the opportunity for group members to opt out of the proceeding was provided, and whether the indemnity costs order against GetSwift Limited was appropriate given their conduct in the interlocutory application.

The court determined that the common fund order could be made when the opportunity for group members to opt out of the proceeding was provided, as this course would cause multiple notices, unnecessary expense, and further delay. The court also found that the indemnity costs order against GetSwift Limited was appropriate because their conduct caused unnecessary costs contrary to the overarching purpose of the Federal Court of Australia Act 1976 (Cth). The court held that the evidence as to the reasonableness of costs claimed was not in strict compliance with the Practice Note but was sufficient to establish that the costs claimed were reasonably incurred on a "broad brush" approach to quantification.

The final orders made by the court included an order for GetSwift Limited to pay Mr Webb's costs and associated disbursements on an indemnity basis, with such costs forming part of the lump sum costs order made in NSD580/2018 in favour of the applicant. The court also made orders for the costs in relation to the interlocutory application to be determined in chambers on the papers, with a draft order indicating the costs orders sought to be filed and served by Mr Webb.

Orders

Orders of the court

1. Pursuant to Rule 40.02(b) of the Federal Court Rules 2011 (Cth) the respondent is to pay the applicant’s costs and associated disbursements of the proceedings on an indemnity basis, with such costs forming part of the lump sum costs order made in NSD580/2018 in favour of the applicant.

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

On 20 June 2018 I made a number of orders which flowed from the judgment I delivered in Perera v GetSwift Limited [2018] FCA 732 (principal judgment). This included putting in place a cost reference, making a common fund order, and approving notices to group members pursuant to s 33Y(2) of the Federal Court of Australia Act 1976 (Cth) (Act). The approved notices informed group members of their right to opt out of this proceeding (Webb Proceeding) and also as to the terms of a common fund order. Under the heading of “Common Fund Order” in the orders made on 20 June 2018, the following appears:18.Subject to further order, and pursuant to ss 23 and 33ZF of the Federal Court of Australia Act 1976 (Cth) (Act), upon Resolution (as defined in the Funding Terms) the applicant and group members pay from any Resolution Sum (as defined in the Funding Terms) the amounts referred to in paragraphs 5(a) and (b) of the Funding Terms, prior to any distribution to group members, in accordance with the Funding Terms.19.Order 18 is subject to the provision of an undertaking by each of Therium Litigation Finance (Australia) Limited (Therium), the applicant, and Phi Finney McDonald to each other and to the Court in the terms set out in Annexure C to these Orders (being that they will comply with their obligations under the Funding Terms (being Annexure B to these Orders) and the terms of Order 18), such undertaking to be given within seven days of the making of Order 18. Further, on 25 June 2018, in addition to making orders protecting the process of opt out (the reasons for which have been published as Webb v GetSwift Limited (No 2) [2018] FCA 994), I made the following orders relating to costs:3.Squire Patton Boggs pay Mr Webb’s costs of the Interlocutory Application on an indemnity basis, with such costs to be paid on a lump sum basis in an amount to be fixed.4.Order 3 made on 20 June 2018 be vacated and in lieu thereof orders that the issue of costs in relation to the interlocutory application filed on 25 May 2018 and the amended interlocutory application dated 28 May 2018 and their quantification be reserved, save that any costs will be awarded on a lump sum basis.5.By 2 July 2018, Mr Webb file and serve a draft order indicating the costs orders sought, together with any evidence relating to the quantification of costs and any written submissions.6.By 9 July 2018, any party against whom a costs order is sought file and serve any evidence and submissions in reply.7.Unless any party against whom a costs order is sought indicates in writing to the Associate to Justice Lee by 12 pm on 10 July 2018 that they wish to be heard further orally, the costs orders be determined in Chambers on the papers. This judgment sets out my reasons for: (a) making the common fund order; (b) making order 3 on 25 June 2018 (that Squire Patton Boggs (SPB) pay Mr Webb’s costs of the Interlocutory Application determined that day on an indemnity basis); and (c) now making orders following a review of the evidence and the additional submissions I have received in accordance with the orders of 25 June 2018. B COMMON FUND ORDER

Ratio Decidendi

Legal Principle Established

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