FEDERAL COURT OF AUSTRALIA

Kirby v Centro Properties Limited (No 6) [2012] FCA 650

THE COURT ORDERS THAT:

1.    Pursuant to sections 33V and 33ZF of the Federal Court of Australia Act 1976 (Cth) (‘the Act’), the settlement of proceedings VID 326 of 2008, VID 327 of 2008 and VID 1028 of 2010 between the applicants and the respondents (‘Proceedings’), be approved on the terms:

(a)    set out in the Deed of Settlement executed by the parties to the proceedings, IMF (Australia) Limited and Maurice Blackburn Limited on 17 May 2012 being Annexure MJH-1 to the Affidavit of Martin Hyde in relation to Settlement Approval sworn on 8 June 2012; and

(b)    set out in the Settlement Distribution Scheme dated 4 June 2012 being Annexure MJH-5 to the Affidavit of Martin Hyde in relation to Settlement Approval sworn on 8 June 2012 and the Confidential Schedule A Loss Assessment Formula being Annexure MJH-6 to the Confidential Affidavit of Martin Hyde sworn in relation to Settlement Approval sworn on 8 June 2012.

2.    Pursuant to section 50 of the Act:

(a)    the Confidential Affidavit of Martin Hyde in relation to Settlement Approval sworn on 8 June 2012 and the annexures thereto; and

(b)     the Second Confidential Affidavit of Martin Hyde sworn on [12] June 2012 annexing the confidential opinion of Counsel instructed by the applicants,

be made confidential and be sealed on the Court file in an envelope marked “Not to be opened except by leave of the Court or a Judge”.

3.    Pursuant to section 33ZF of the Act, the amount of $21.1 million be approved as the amount of the applicants’ Costs for the purposes of the Settlement Distribution Scheme.

4.    Pursuant to section 33ZF of the Act or otherwise, the Court authorises the applicants nunc pro tunc on behalf of the group members as defined in paragraph 1 of the respective Statements of Claim filed in the Proceedings (‘Group Members’) to enter into and to give effect to the Deed of Settlement and the transactions contemplated thereby for and on behalf of those Group Members.

5.    All costs orders made to date in the Proceedings (including orders reserving costs) be vacated.

6.    The Proceedings (including any cross claims) be otherwise dismissed on the basis that the dismissal is a defence and absolute bar to any claim or proceeding by any applicant and/or any Kirby or Stott Group Member in respect of matters arising out of or related to the Proceedings (including any cross-claims).

7.    Pursuant to section 33ZB and section 33ZF of the Act, the persons affected and bound by orders 1 to 6 are the applicants, the respondents and the Kirby and Stott Group Members as defined in the Deed of Settlement being MJH-1 to the Affidavit of Martin Hyde sworn on 8 June 2012.

8.    There be no order as to costs of the Proceedings (including any-cross claims).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT ORDERS THAT:

1.    Pursuant to sections 33V and 33ZF of the Federal Court of Australia Act 1976 (Cth) (‘the Act’), the settlement of proceedings VID 326 of 2008, VID 327 of 2008 and VID 1028 of 2010 between the applicants and the respondents (‘Proceedings’), be approved on the terms:

(a)    set out in the Deed of Settlement executed by the parties to the proceedings, IMF (Australia) Limited and Maurice Blackburn Limited on 17 May 2012 being Annexure MJH-1 to the Affidavit of Martin Hyde in relation to Settlement Approval sworn on 8 June 2012; and

(b)    set out in the Settlement Distribution Scheme dated 4 June 2012 being Annexure MJH-5 to the Affidavit of Martin Hyde in relation to Settlement Approval sworn on 8 June 2012 and the Confidential Schedule A Loss Assessment Formula being Annexure MJH-6 to the Confidential Affidavit of Martin Hyde sworn in relation to Settlement Approval sworn on 8 June 2012.

2.    Pursuant to section 50 of the Act:

(a)    the Confidential Affidavit of Martin Hyde in relation to Settlement Approval sworn on 8 June 2012 and the annexures thereto; and

(b)     the Second Confidential Affidavit of Martin Hyde sworn on [12] June 2012 annexing the confidential opinion of Counsel instructed by the applicants,

be made confidential and be sealed on the Court file in an envelope marked “Not to be opened except by leave of the Court or a Judge”.

3.    Pursuant to section 33ZF of the Act, the amount of $21.1 million be approved as the amount of the applicants’ Costs for the purposes of the Settlement Distribution Scheme.

4.    Pursuant to section 33ZF of the Act or otherwise, the Court authorises the applicants nunc pro tunc on behalf of the group members as defined in paragraph 1 of the respective Statements of Claim filed in the Proceedings (‘Group Members’) to enter into and to give effect to the Deed of Settlement and the transactions contemplated thereby for and on behalf of those Group Members.

5.    All costs orders made to date in the Proceedings (including orders reserving costs) be vacated.

6.    The Proceedings (including any cross claims) be otherwise dismissed on the basis that the dismissal is a defence and absolute bar to any claim or proceeding by any applicant and/or any Kirby or Stott Group Member in respect of matters arising out of or related to the Proceedings (including any cross-claims).

7.    Pursuant to section 33ZB and section 33ZF of the Act, the persons affected and bound by orders 1 to 6 are the applicants, the respondents and the Kirby and Stott Group Members as defined in the Deed of Settlement being MJH-1 to the Affidavit of Martin Hyde sworn on 8 June 2012.

8.    There be no order as to costs of the Proceedings (including any-cross claims).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT ORDERS THAT:

1.    Pursuant to section 33V of the Federal Court of Australia Act 1976 (‘the Act’), that the proposed settlement of these proceedings, as reflected in the Deed of Settlement (Tab 1 of Exhibit JH-1 to the Affidavit of James Higgins sworn on 13 June 2012), be approved.

2.    Pursuant to paragraph 33ZB(a) and/or section 33ZF of the Act, the persons affected and bound by the settlement of the proceedings be the Applicants, the Respondents and the group members who are Vlachos Group Members as defined in the Deed of Settlement.

3.    Pursuant to section 33ZF of the Act, the Applicants be authorised nunc pro tunc on behalf of the Vlachos Group Members to enter into and give effect to the Deed of Settlement executed by the parties in the proceedings and the transactions thereby contemplated for an on behalf of the Vlachos Group Members.

4.    Pursuant to section 33ZF of the Act, Slater & Gordon be appointed Administrator of a Distribution Scheme and to act in accordance with the rules of said Distribution Scheme as exhibited to the open affidavit of James Higgins dated 8 June 2012

5.    The reasonable costs and disbursements of the Applicants in conducting the proceedings be approved in an amount of $10.06 million.

6.    The costs and disbursements of the applicants in obtaining approval of the settlement be the subject of a further report to be filed by Paul Linsdell, cost assessor, and the amount the subject of that report be approved subject to any party or the Court requiring that the matter be mentioned before the Court.

7.    The costs and disbursements of Slater & Gordon in acting as Administrator of the Distribution Scheme be the subject of a further report to be filed by Paul Linsdell, cost assessor, and the amount the subject of that report be approved subject to any party or the Court requiring that the matter be mentioned before the Court.

8.    Slater & Gordon have liberty to apply for directions in connection with the Distribution Scheme.

9.    All costs orders made to date in the proceedings be vacated.

10.    There be no order as to the costs of the proceedings (including any cross claims).

11.    The Confidential Affidavit of James Higgins made on 13 June 2012, together with its exhibit, be sealed on the Court file pursuant to section 50 of the Act and marked not to be opened other than pursuant to an order of a Judge upon 3 days notice to the solicitors for the Applicants.

12.    The claims in the Proceedings (including any cross-claims) are dismissed, on the basis that the dismissal is a defence and absolute bar to any claim or proceeding by any applicant and/or any Vlachos Group Member in respect of matters arising out of or related to the Proceedings (including any cross-claims).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT ORDERS THAT:

1.    Pursuant to sections 33V and 33ZF of the Federal Court of Australia Act 1976 (Cth) (‘the Act’), the settlement of proceedings VID 326 of 2008, VID 327 of 2008 and VID 1028 of 2010 between the applicants and the respondents (Proceedings), be approved on the terms:

(a)    set out in the Deed of Settlement executed by the parties to the proceedings, IMF (Australia) Limited and Maurice Blackburn Limited on 17 May 2012 being Annexure MJH-1 to the Affidavit of Martin Hyde in relation to Settlement Approval sworn on 8 June 2012; and

(b)    set out in the Settlement Distribution Scheme dated 4 June 2012 being Annexure MJH-5 to the Affidavit of Martin Hyde in relation to Settlement Approval sworn on 8 June 2012 and the Confidential Schedule A Loss Assessment Formula being Annexure MJH-6 to the Confidential Affidavit of Martin Hyde sworn in relation to Settlement Approval sworn on 8 June 2012.

2.    Pursuant to section 50 of the Act:

(a)    the Confidential Affidavit of Martin Hyde in relation to Settlement Approval sworn on 8 June 2012 and the annexures thereto; and

(b)     the Second Confidential Affidavit of Martin Hyde sworn on [12] June 2012 annexing the confidential opinion of Counsel instructed by the applicants,

be made confidential and be sealed on the Court file in an envelope marked "Not to be opened except by leave of the Court or a Judge”.

3.    Pursuant to section 33ZF of the Act, the amount of $21.1 million be approved as the amount of the applicants’ Costs for the purposes of the Settlement Distribution Scheme.

4.    Pursuant to section 33ZF of the Act or otherwise, the Court authorises the applicants nunc pro tunc on behalf of the group members as defined in paragraph 1 of the respective Statements of Claim filed in the Proceedings (‘Group Members’) to enter into and to give effect to the Deed of Settlement and the transactions contemplated thereby for and on behalf of those Group Members.

5.    All costs orders made to date in the Proceedings (including orders reserving costs) be vacated.

6.    The Proceedings (including any cross claims) be otherwise dismissed on the basis that the dismissal is a defence and absolute bar to any claim or proceeding by any applicant and/or any Kirby or Stott Group Member in respect of matters arising out of or related to the Proceedings (including any cross-claims).

7.    Pursuant to section 33ZB and section 33ZF of the Act, the persons affected and bound by orders 1 to 6 are the applicants, the respondents and the Kirby and Stott Group Members as defined in the Deed of Settlement being MJH-1 to the Affidavit of Martin Hyde sworn on 8 June 2012.

8.    There be no order as to costs of the Proceedings (including any-cross claims).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT ORDERS THAT:

1.    Pursuant to section 33V of the Federal Court of Australia Act 1976 (‘the Act’), that the proposed settlement of these proceedings, as reflected in the Deed of Settlement (Tab 1 of Exhibit JH-1 to the Affidavit of James Higgins sworn on 13 June 2012), be approved.

2.    Pursuant to paragraph 33ZB(a) and/or section 33ZF of the Act, the persons affected and bound by the settlement of the proceedings be the Applicants, the Respondents and the group members who are Vlachos Group Members as defined in the Deed of Settlement.

3.    Pursuant to section 33ZF of the Act, the Applicants be authorised nunc pro tunc on behalf of the Vlachos Group Members to enter into and give effect to the Deed of Settlement executed by the parties in the proceedings and the transactions thereby contemplated for an on behalf of the Vlachos Group Members.

4.    Pursuant to section 33ZF of the Act, Slater & Gordon be appointed Administrator of a Distribution Scheme and to act in accordance with the rules of said Distribution Scheme as exhibited to the open affidavit of James Higgins dated 8 June 2012

5.    The reasonable costs and disbursements of the Applicants in conducting the proceedings be approved in an amount of $10.06 million.

6.    The costs and disbursements of the applicants in obtaining approval of the settlement be the subject of a further report to be filed by Paul Linsdell, cost assessor, and the amount the subject of that report be approved subject to any party or the Court requiring that the matter be mentioned before the Court.

7.    The costs and disbursements of Slater & Gordon in acting as Administrator of the Distribution Scheme be the subject of a further report to be filed by Paul Linsdell, cost assessor, and the amount the subject of that report be approved subject to any party or the Court requiring that the matter be mentioned before the Court.

8.    Slater & Gordon have liberty to apply for directions in connection with the Distribution Scheme.

9.    All costs orders made to date in the proceedings be vacated.

10.    There be no order as to the costs of the proceedings (including any cross claims).

11.    The Confidential Affidavit of James Higgins made on 13 June 2012, together with its exhibit, be sealed on the Court file pursuant to section 50 of the Act and marked not to be opened other than pursuant to an order of a Judge upon 3 days notice to the solicitors for the Applicants.

12.    The claims in the Proceedings (including any cross-claims) are dismissed, on the basis that the dismissal is a defence and absolute bar to any claim or proceeding by any applicant and/or any Vlachos Group Member in respect of matters arising out of or related to the Proceedings (including any cross-claims).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    I have before me a number of representative proceedings where ‘settlements in principle’ have been reached between the parties. Applications for approval of these settlements have now been made under ss 33V and 33ZF of the Federal Court of Australia Act 1976 (Cth).

2    My principal task is to determine whether the compromises are fair and reasonable compromises of the claims made on behalf of the group members in each of these proceedings.

3    There are a number of matters which I have considered in undertaking this task. These matters have included the complexity and duration of the litigation, the reaction to the proposed compromise by group members, the stage of the proceedings, the risks involved in the litigation, the range of the reasonableness of the compromise amount, and the ability of the respondents to satisfy any amount ordered to be paid, both now and in the future.

4    Particularly relevant to these proceedings, I have also taken into account that liability was necessarily dependent on some difficult and controversial points of law, and appeals would be inevitable. Such a process brings greater uncertainty to recovery, and would involve substantial delay even if liability were to be established.

5    I have before me evidentiary material in support of the applications demonstrating the fairness and reasonableness of the compromises.

6    In addition, as the proposed settlements include provision for payment of a lump sum for legal costs, the Court has evidence before it demonstrating the reasonableness of the calculation of these costs.

7    In relation to my principal task, I have been provided with confidential opinions from experienced, competent and respected Counsel to the effect that the proposed settlements are fair, reasonable, and (to the extent relevant) adequate, in the interests of the group members as a whole.

8    I accept these opinions. Whilst such opinions are not determinative of the issue, they provide a strong basis to conclude that the settlements in the proceedings are fair and reasonable for the group members as a whole.

9    I have also considered the evidence as to the legal costs and disbursements. On the basis of this evidence, I regard the costs and disbursements as being reasonable.

10    To the extent a sum of money is paid to the applicants for their personally bringing the proceedings (as lead applicants) in the interests of all group members, I also consider that the sums allocated are reasonable, and such reimbursement is appropriate. To the extent that other monies are to be paid, including commissions under the terms of litigation funding agreements, or costs of administration in the implementation of settlement sums being distributed, I also regard these as appropriate and reasonable to be paid in the manner proposed.

11    I note that the proposed settlements are global settlements, depending on the settlement of each set of representative proceedings.

12    Complete precision is never possible, in assessments of this type, in determining what is fair and reasonable. Nevertheless, I am satisfied that the formula and process for the distribution of the proposed settlement sums is appropriate. I accept that the proposals adopt the fairest and most reasonable approach to the group members, taking into account the prospects of recovery and risks of continuing to litigate these proceedings. In my view, there has been proposed a fair and equitable distribution as between group members within groups and between different groups, reflecting the prospects of success of the respective groups.

13    Therefore, I will approve the proposed settlements and make appropriate ancillary orders.

14    I congratulate the parties and their legal representatives on reaching these settlements. It is in the public interest that fair and reasonable settlements can be facilitated and are able to be achieved. However, it must also be remembered that there is a public interest that where settlement is not possible, the Court’s function is to be available to conduct an efficient and effective trial.

15    I can imagine that with these particular class actions, reaching agreement in principle would have been difficult, not just because of the complex legal and factual issues involved, but because of changing events occurring in the marketplace whilst the trial was in progress.

16    Finally, the Court has been much assisted by the co-operation of all those involved in the trial, and the bringing to the Court these settlements for approval. I am sure, if the trial judge, Gordon J, were here now, she would enthusiastically thank you for your endeavours in reaching the agreements in principle. I am sure she will thank me for approving these settlements. I stress, however, her Honour’s thanks is a completely irrelevant consideration to my principal task as described above.

17    I therefore propose to make the orders submitted by the parties.

Associate:

Dated:    21 June 2012