Wills v Woolworths Group Ltd

Case [2022] FCA 1545


FEDERAL COURT OF AUSTRALIA

Wills v Woolworths Group Ltd [2022] FCA 1545

File number: VID 1131 of 2018
Judgment of: BEACH J
Date of judgment: 19 October 2022
Date of reasons: 20 December 2022
Catchwords: REPRESENTATIVE PROCEEDINGS – approval of settlement under s 33V of the Federal Court of Australia Act 1976 (Cth) – appropriateness of funding commission – legal costs and disbursements – referee’s report – orders made
Legislation:

Federal Court of Australia Act 1976 (Cth) s 33V

Legal Profession Uniform Law ss 174, 178, 182, 199

Legal Profession Uniform Law Application Act 2014 (Vic) Sch 1

Cases cited:

Blairgowrie Trading Ltd v Allco Finance Group Ltd (in liq) (No 3) (2017) 343 ALR 476

Foley v Gay [2016] FCA 273

Williams v FAI Home Security Pty Ltd (No 4) (2000) 180 ALR 459

Division: General Division
Registry: Victoria
National Practice Area: Commercial and Corporations
Sub-area: Corporations and Corporate Insolvency
Number of paragraphs: 101
Date of hearing: 2 August and 19 October 2022
Counsel for the Applicants: Mr N Hutley SC with Mr G Donnellan
Solicitor for the Applicants: Maurice Blackburn
Counsel for the Respondent: Mr N De Young KC
Solicitor for the Respondent: King & Wood Mallesons

ORDERS

VID 1131 of 2018
BETWEEN:

NORMAN LESLIE WILLS AND JANE ANNE DANAHER (AS TRUSTEES FOR THE MINTY TIN SUPERANNUATION FUND)

Applicants

AND:

WOOLWORTHS GROUP LTD (FORMERLY WOOLWORTHS LTD) (ACN 000 014 675)

Respondent

ORDER MADE BY:

BEACH J

DATE OF ORDER:

2 AUGUST 2022

THE COURT ORDERS THAT:

1.Pursuant to ss 33V and 33ZF of the Federal Court of Australia Act 1976 (Cth) (Act), the settlement of this proceeding be approved on the terms set out in:

(a)the Settlement Deed dated 29 January 2021 (being annexure ‘SMF-1’ to the affidavit of Steven Mark Foale dated 10 February 2021) (Deed); and

(b)the Settlement Distribution Scheme (being annexure ‘SMF-50’ to the confidential affidavit of Steven Mark Foale dated 13 June 2022, together with the Loss Assessment Formula being annexure ‘SMF-25’ to the confidential affidavit of Steven Mark Foale dated 10 May 2021) (SDS).

2.Pursuant to s 33ZF of the Act, the Court authorises the applicants, nunc pro tunc, to enter into and give effect to the Deed for and on behalf of all group members.

3.Pursuant to s 33ZF of the Act, each of the Released Parties (as defined in the Deed) is released by the applicants and each of the group members from each Claim (as defined In the Deed) made by or on behalf of the applicants or any group member in the proceeding.

4.All previous costs orders made in the proceeding be vacated.

5.Pursuant to r 2.43(1) of the Federal Court Rules 2011 (Cth), all amounts paid into Court by or on behalf of the applicants as security for the respondent’s costs of the proceeding, and any interest accrued on those amounts, be repaid to Maurice Blackburn Pty Ltd.

6.Pursuant to s 33ZF of the Act or otherwise, Maurice Blackburn Pty Ltd be appointed Administrator of the SDS,…

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AGLC
Wills v Woolworths Group Ltd [2022] FCA 1545
Case
[2022] FCA 1545
Decision Date

CaseChat Overview and Summary

The case of Wills v Woolworths Group Ltd involved a dispute concerning the approval of a settlement under section 33V of the Federal Court of Australia Act 1976. The primary focus of the case was on the appropriateness of the funding commission for legal costs and disbursements, as evaluated by a referee’s report. The decision was delivered by the Federal Court of Australia.

The court was required to decide on the legality and appropriateness of the funding commission outlined in the referee’s report, which proposed a reduction in the approved amount for legal costs and disbursements. The issues also included the standard applied by the referee in making the proposed reduction and the extent to which the referee’s report adequately justified the reduction. Additionally, the court needed to determine whether the referee's approach to proportionality was correctly applied.

In assessing the referee's report, the court found significant errors in the referee's application of the standard of proportionality and noted that the report did not sufficiently explain the rationale behind the proposed reduction. Consequently, the court rejected the referee's proposed reduction and instead adopted the views and analysis of Mr. Ramsey-Stewart regarding the legal costs and disbursements. The court concluded that the referee's report contained pervasive legal and factual errors, rendering it unsuitable for adoption in any part.

The court ordered that the referee's report of 7 December 2021 be rejected in its entirety. Furthermore, the court approved the amount of $14,576,736.36 for the ‘Applicants’ Legal Costs and Disbursements’ up to the date of the orders. The court also clarified that a previous order made on 2 August 2022 would extend to all annexures to the affidavits and the referee’s report.

Orders

Orders of the court

1. Pursuant to s 54A(3)(c) of the Federal Court of Australia Act 1976 (Cth) and rule 28.67 of the Federal Court Rules 2011 (Cth), the report of John David White dated 7 December 2021 be rejected in whole.

2. Pursuant to ss 33V(2) and/or 33ZF of the Act, for the purposes of the SDS the amount of the ‘Applicants’ Legal Costs and Disbursements’, up to the date of these orders, be approved in the amount of $14,576,736.36.

3. For the avoidance of doubt, order 15 of the orders made on 2 August 2022 shall extend to all annexures to the two affidavits referred to including the costs referee’s report.

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

So, the referee misapplied the standard of proportionality and otherwise did not sufficiently reveal how and why the proposed reduction was made. I have rejected the reduction.Conclusion In summary, given the nature of the legal and factual errors made by the referee that permeated his report, I decided not to adopt any part of it. In the circumstances, in determining the reasonableness of the legal costs and disbursements to be approved, I accepted the views and analysis of Mr Ramsey-Stewart, with the amounts sought updated from the time that he had expressed his opinion.

Ratio Decidendi

Legal Principle Established

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