Weimann v Allphones Retail Pty Limited

Case [2011] FCA 537

FEDERAL COURT OF AUSTRALIA

Weimann v Allphones Retail Pty Limited [2011] FCA 537

Citation: Weimann v Allphones Retail Pty Limited [2011] FCA 537
Parties: NORBERT CHRISTIAN WEIMANN AS TRUSTEE FOR THE WEIMANN FAMILY TRUST NO. 3 v ALLPHONES RETAIL PTY LIMITED (ACN 008 168 090); ALLPHONES RETAIL PTY LIMITED (ACN 008 168 090) v NORBERT CHRISTIAN WEIMANN AS TRUSTEE FOR THE WEIMANN FAMILY TRUST NO. 3, CREAM OF THE CROP RECRUITMENT PTY LTD (ACN 103 596 881) AS TRUSTEE OF THE SUZANNE AND SIMON JONES TRUST, RUTH BLACKET, CLEMCOM PTY LTD (ACN 095 964 079) AS TRUSTEE FOR THE JENKINSON FAMILY TRUST, TONY PEARCE SLANN AND GLENDA LEAH SLANN (NEE BURNETT) (JOINTLY AND SEVERALLY), KPMF PTY LTD (ACN 110 846 510), MADCOMM PTY LTD (ACN 108 117 835), JUST US AUSTRALIA (QLD) PTY LTD (ACN 105 873 390), SNEBS PTY LTD (ACN 112 151 532) AS TRUSTEE OF THE SHANAHAN FAMILY TRUST, COMMNET PTY LTD (ACN 112 009 417) AS TRUSTEE OF THE COMMNET UNIT TRUST and HI-COMM PTY LTD (ACN 092 601 806)
File number: WAD 45 of 2009
Judge: FOSTER J
Date of judgment:  20 May 2011
Catchwords: PRACTICE AND PROCEDURE – whether the Court should approve a settlement of representative proceedings brought pursuant to Pt IVA of the Federal Court of Australia Act 1976 (Cth) – considerations of confidentiality discussed – settlement approved
Legislation: Federal Court of Australia Act 1976 (Cth), Pt IVA
Trade Practices Act 1974 (Cth), s 51AC
Cases cited: Allphones Retail Pty Ltd v Hoy Mobile Pty Ltd [2009] FCAFC 85 referred to
Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 71 FCR 250 followed
Dorajay Pty Ltd v Aristocrat Leisure Ltd [2009] FCA 19 followed
Taylor v Telstra Corporation Ltd [2007] FCA 2008 followed
Williams v FAI Home Security Pty Ltd (No 4) (2000) 180 ALR 459 followed
Date of hearing: 30 April 2010
Date of orders:  10 May 2010
Date of publication of reasons: 20 May 2011
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords 
Number of paragraphs: 34
Counsel for the Applicant: Mr TJ Brennan
Solicitor for the Applicant: Chew + Matthews
Counsel for the Respondent: Mr DR Pritchard SC
Solicitor for the Respondent: DLA Piper Australia

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 45 of 2009
BETWEEN:

NORBERT CHRISTIAN WEIMANN AS TRUSTEE FOR THE WEIMANN FAMILY TRUST NO. 3
Applicant
AND:

ALLPHONES RETAIL PTY LIMITED (ACN 008 168 090)
Respondent

AND BETWEEN:

ALLPHONES RETAIL PTY LIMITED (ACN 008 168 090)
Cross-Claimant
AND:

NORBERT CHRISTIAN WEIMANN AS TRUSTEE FOR THE WEIMANN FAMILY TRUST NO. 3
First Cross-Respondent

CREAM OF THE CROP RECRUITMENT PTY LTD (ACN 103 596 881) AS TRUSTEE OF THE SUZANNE AND SIMON JONES TRUST
Second Cross-Respondent

RUTH BLACKET
Third Cross-Respondent

CLEMCOM PTY LTD (ACN 095 964 079) AS TRUSTEE FOR THE JENKINSON FAMILY TRUST
Fourth Cross-Respondent

TONY PEARCE SLANN AND GLENDA LEAH SLANN (NEE BURNETT) (JOINTLY AND SEVERALLY)
Fifth Cross-Respondents

KPMF PTY LTD (ACN 110 846 510)
Sixth Cross-Respondent

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AGLC
Weimann v Allphones Retail Pty Limited [2011] FCA 537
Case
[2011] FCA 537
Decision Date

CaseChat Overview and Summary

The case of Weimann v Allphones Retail Pty Limited involved the Australian Competition and Consumer Commission (ACCC) and Allphones Retail Pty Limited, along with several individual respondents, who were executives of Allphones. The dispute was primarily concerned with the approval of a settlement of representative proceedings brought under Part IVA of the Federal Court of Australia Act 1976 (Cth). The proceedings were initially scheduled for a final hearing in March 2010, but by April 2010, several related proceedings had been settled. The matter in question, however, remained unresolved until it was settled on 22 April 2010.

The court was tasked with deciding whether to approve the settlement and the associated confidentiality orders. It needed to consider the implications of approving the settlement, including the impact on the proceedings and the broader public interest. Additionally, the court had to ensure that the settlement terms were fair and just, and that the confidentiality provisions were appropriate to protect the parties involved while balancing the public's right to know.

In approving the settlement, the court noted that it was common practice to deliver brief reasons when approving such settlements. The court acknowledged that the settlement had been reached by the parties and considered the terms set out in the Deed of Settlement. The court found that the settlement was fair and just, and that the confidentiality provisions were appropriate to protect the parties involved. The court also noted that the settlement included provisions for new franchise agreements to be provided to the applicant and group members, with specific terms to be included and deadlines for execution and delivery.

Ultimately, the court approved the settlement and ordered the dismissal of the proceedings. The court also imposed confidentiality orders to ensure that the terms of the settlement and the applicant's submissions were not disclosed to any person without leave of a judge.

Orders

Orders of the court

1. Pursuant to s 33V and s 33ZF of the Federal Court of Australia Act 1976 (Cth), settlement of this proceeding (including the Cross-Claim) be approved on the terms set out in Deed of Settlement dated 22 April 2010 executed by or on behalf of the applicant and all group members and by the respondent, a true copy of which is exhibited to the affidavit of Michael James Sims affirmed on 28 April 2010 and filed herein and marked with the marking “Confidential Exhibit MJS‑2” (pages 30–131 of the said affidavit) (Deed of Settlement).

2. All costs orders previously made in this proceeding be vacated.

3. The respondent be released from the undertakings given by it to the Court on 6 April 2009, 22 July 2009 and 4 February 2010.

4. The applicant and the second to eleventh cross-respondents be released from the undertakings as to damages given by each of them to the Court.

5. The respondent’s Notice of Motion dated 8 March 2010, the applicant’s application to amend his Statement of Claim, the respondent’s objections to certain evidence intended to be led by the applicant on the basis of s 131 of the Evidence Act 1995 (Cth), the applicant’s foreshadowed application for leave to further amend his Statement of Claim and the applicant’s foreshadowed application to strike out certain paragraphs of the Defence all be dismissed.

6. The whole of this proceeding (including the Cross-Claim) be dismissed.

7. There be no orders as to the costs of this proceeding (including the Cross-Claim).

8. Pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth), the Deed of Settlement and the terms thereof not be disclosed to any person and be kept in the Court file in a sealed envelope marked “Not to be opened except by leave of a Judge”.

9. Pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth), the document styled “Applicant’s Submissions in Support of His Notice of Motion Dated 28 April 2010” filed in Court on 30 April 2010 and marked “MFI 1” on 30 April 2010 not be disclosed to any person and be kept in the Court file in a sealed envelope marked “Not to be opened except by leave of a Judge”.

10. Pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth), the documents exhibited to the affidavit of Andrew James Sharpe sworn on 5 May 2010 and styled “Confidential Exhibit AJS‑1” and “Confidential Exhibit AJS‑2” not be disclosed to any person and be kept in the Court file in a sealed envelope marked “Not to be opened except by leave of a Judge”.

11. The Court notes that as part of the settlement approved this day:

(a) The respondent must provide to the applicant and to each group member in a form suitable for execution by the applicant or group member, as the case may be, two copies of a franchise agreement in the form:

(i) Set out at Schedule B to the Deed of Settlement, in the case of those group members listed in the schedule set out in Confidential Exhibit AJS‑1 to the affidavit of Andrew James Sharpe sworn on 5 May 2010 as a “Licensee”; or

(ii) Set out in Confidential Exhibit AJS‑2 to the affidavit of Andrew James Sharpe sworn on 5 May 2010 and filed herein, in the case of the applicant and those group members listed in the schedule set out in Confidential Exhibit AJS‑1 as a “Lessee”.

(New Agreement);

(b) The execution copies of the New Agreement provided by the respondent to the applicant and each group member are to contain:

(i) at Item 11 in Schedule 1 the corresponding “Term” listed in Confidential Exhibit AJS‑1; and

(ii) at Item 13 in Schedule 1 the corresponding “Special Conditions” listed in Confidential Exhibit AJS‑1.

(c) The applicant is to deliver to the respondent a copy of the New Agreement executed by the applicant not less than 14 days and not more than 21 days after receipt by the applicant of the execution copies of the New Agreement from the respondent.

(d) Each group member is to deliver to the respondent a copy of the New Agreement executed by the group member not less than 14 days and not more than 21 days after receipt by the group member of the execution copies of the New Agreement from the respondent; and

(e) As provided in cl 9 of the Deed of Settlement, the form of the New Agreement referred to in par 11(a) above may be amended by agreement between the respondent and each of the applicant and group members.

Background

Background to the litigation

These Reasons which I now publish constitute my reasons for making the orders which I made on 10 May 2010.BACKGROUND These proceedings were one of four sets of proceedings which I fixed for final hearing commencing on 23 March 2010. The hearing of these proceedings was, at that time, programmed to take place in the latter part of that fixture which was expected to be of six to eight weeks’ duration. The parties opened their cases on 23, 24 and 25 March 2010. Although various documents were referred to in those openings, no documents, affidavits or witness’ statements were tendered or admitted into evidence during those openings. On 29 March 2010, I was informed that the parties in proceeding NSD 408 of 2008 and in proceeding NSD 869 of 2009 (the Australian Competition and Consumer Commission (the ACCC), Allphones Retail Pty Limited (Allphones), Matthew Donnellan, Ian Harkin and Anthony Baker) had settled those proceedings and that the parties in proceeding NSD 1567 of 2008 (the ACCC and Allphones) were hopeful of resolving that proceeding save for a Notice of Motion filed by the ACCC against Allphones in which it claimed that Allphones had committed a contempt of Court. That contempt Motion was in the docket of another judge of the Court. As at 29 March 2010, these proceedings had not been resolved. I had previously fixed for hearing on 29 March 2010 the respondent’s Notice of Motion in which they sought a raft of interlocutory orders and the applicant’s application to amend further their Application and Statement of Claim. By consent, I adjourned the further hearing of these proceedings to 6 April 2010 when I intended to reprogram the hearing of the matter in light of the settlement of the other matters. On 6 April 2010, I made further interlocutory orders designed to deal with all outstanding matters. I refixed the matter for final hearing commencing on 17 May 2010. I also ordered that the matter be referred to mediation. The matter was then settled. On 30 April 2010, I made interim confidentiality orders in respect of the Deed of Settlement dated 22 April 2010 and in respect of the applicant’s Written Submissions filed in support of the approval orders then sought by the parties. On that day, I also heard the parties’ application for Court approval of their settlement and indicated to the parties that I would approve the settlement subject to reframing the orders which they sought. As I mentioned at [1] above, on 10 May 2010, I made orders approving the settlement and orders finally disposing of the proceeding. It is the practice of the Court to deliver brief reasons when approving the settlement of representative proceedings. These Reasons are published in conformity with that practice. OUTLINE OF THE PROCEEDINGS In 2008, the ACCC commenced two sets of proceedings against Allphones and certain individuals who had been involved in the conduct about which the ACCC complained in their capacity as executives of Allphones. These proceedings were NSD 408 of 2008 and NSD 1567 of 2008. Subsequently, in 2009, the ACCC commenced a further proceeding against Allphones and against the same individual respondents as had been sued in proceeding NSD 408 of 2008.

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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