FEDERAL COURT OF AUSTRALIA

Andrews v Australia and New Zealand Banking Group Limited [2019] FCA 2216

ORDERS

THE COURT ORDERS THAT:

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

(a)    the Deed of Settlement and Release dated 18 December 2018 (being annexure ‘SMF-6’ to the Confidential Affidavit of Steven Mark Foale affirmed 28 February 2019) (Deed); and

(b)    the proposed Settlement Distribution Scheme annexed to the Affidavit of Steven Mark Foale affirmed 3 December 2019 (being annexure ‘SMF-12’) (SDS).

2.    Pursuant to s 33V of the FCAA, s 33ZF(1) of the FCAA or otherwise, 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.    All remaining claims of the applicants and Group Members in this consolidated proceeding be dismissed, with no orders as to costs.

4.    All costs orders made in this consolidated proceeding or in the proceedings prior to the consolidation order being made, whether made in favour of the applicants, the respondent or otherwise, be vacated.

5.    Pursuant to s 33V of the FCAA, s 33ZF(1) of the FCAA or otherwise, Maurice Blackburn be appointed administrator of the SDS, and to act in accordance with the SDS and be given the powers and immunities contemplated by the SDS.

6.    Pursuant to s 33V of the FCAA, s 33ZF(1) of the FCAA or otherwise, for the purposes of the SDS the amount of the ‘Applicants’ Reimbursement Payment’ be approved in the amount of $300 for each of the three individual applicants in the consolidated proceeding, being Mr Andrews, Mr Field and Mr Paciocco.

7.    Pursuant to s 33V of the FCAA, s 33ZF(1) of the FCAA or otherwise, for the purposes of the SDS the amount of the 'Administration Costs' be approved in the amount of $23,500 (excl GST).

8.    Maurice Blackburn have liberty to apply in relation to any matter arising under the SDS.

9.    Pursuant to s 33V of the FCAA, s 33ZF(1) of the FCAA or otherwise, the persons referred to in sub-para [26(c)] of the Affidavit of Steven Mark Foale affirmed 3 December 2019 shall be entitled to participate in the distribution of the amounts to be paid under the SDS (provided they otherwise qualify for a distribution in accordance with the terms of the SDS).

10.    Pursuant to s 33ZB of the FCAA, the persons affected and bound by these orders are the applicants, the respondent and all of the Group Members in the consolidated proceeding (other than those Group Members who have opted out in accordance with s 33J of the FCAA).

11.    Pursuant to s 37AF(1)(b) of the FCAA, on the ground that the order is necessary to prevent prejudice to the proper administration of justice and until 31 December 2020, the material contained in the Confidential Affidavit of Steven Mark Foale affirmed on 3 December 2019 not be published or disclosed without the prior leave of the Court to any person or entity other than the applicants, the applicants' legal advisers, the Judge with the carriage of the matter from time to time and officers of the Court to whom it is necessary to disclose the material.

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

REASONS FOR JUDGMENT

MIDDLETON J:

INTRODUCTION

1    On 6 December 2019, the Court made orders approving the settlement of these consolidated proceedings. These are the reasons for those orders and the ancillary orders of the Court. The orders of the Court were made after the decision of the High Court in BMW Australia Ltd v Brewster & Anor; Westpac Banking Corporation v Lenthall & Ors [2019] HCA 45 (‘BMW’). In response to the Court’s request that the parties inform the Court whether the High Court decision in BMW bears upon the settlement of this matter, the parties’ joint position was that it did not. I agreed with that position. In these proceedings, no funding commission was payable to the litigation funder. Instead, the litigation funder would be reimbursed for costs incurred by litigation funder and those costs would be equalised amongst all group members who benefit from the settlement.

2    The applicants, Mr Andrews (and others), sought Court approval of a proposed settlement of a class action pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth) (the ‘Act’). The class action has been settled, subject to Court approval, pursuant to a Deed of Settlement and Release dated 18 December 2018 (the ‘Deed’).

3    This application for approval of a proposed settlement is the final stage in the ‘ANZ Bank Fees’ class actions against the respondent, ANZ, concerning various ‘Exception Fees’ charged by ANZ in the period after May 2004. The actions were funded by a litigation funder, namely, IMF Bentham (‘IMF’). The only part of those proceedings that remained live were claims in respect of a class of fees known as periodical payment non-payment fee (the ‘PPN Fees’). PPN Fees were charged by ANZ to its customers whenever a scheduled ‘periodical payment’ which the customer had authorised to be made from their ANZ account could not be made (usually because of insufficient available funds in the customer’s account to make the payment). It should be noted that the ongoing claims in respect of PPN Fees that were the subject of the relevant proceedings and settlement did not encompass all periodical payment non-payment fees that were charged by ANZ, but instead only PPN Fees that were charged by ANZ where the dishonoured payment was not a payment that was to be made to the account of another person or business (or, in other words, where the dishonoured payment was a payment that was to be made to another account in the customer’s own name).

BACKGROUND

4    The history of the proceedings is lengthy.

5    In 2010 Mr Andrews (and others) commenced a class action in this Court against ANZ (the ‘Andrews Proceeding’) on their own behalf and on behalf of a closed class of certain other customers of ANZ who had been charged ‘Exception Fees’ by ANZ after May 2004 (which it was alleged were penalties, or else charged unconscionably within the meaning of the Australian Securities and Investments Commission Act 2001 (Cth)) and who had signed litigation funding agreements with IMF.

6    The Andrews Proceeding passed through a number of interlocutory steps:

(1)    the determination of separate questions on the law of penalties by Gordon J in 2011, and removal of the appeal from her Honour’s determination to the High Court of Australia in 2012 (resulting in Andrews v Australia and New Zealand Banking Group Ltd (2012) 247 CLR 205); and

(2)    the remitter of the remaining controversy back to the Federal Court where, for procedural reasons, the Andrews Proceeding was adjourned until the remaining issues were determined in a separate closed class representative proceeding commenced on 13 March 2013 by Mr Paciocco and others (the ‘Paciocco Proceeding’).

7    The second class action, namely, the Paciocco Proceeding, was commenced in this Court against ANZ by Mr Paciocco and others who had been charged Exception Fees by ANZ (not limited in time to fees charged after May 2004) on their own behalf and on behalf of certain other customers of ANZ, in which substantially the same allegations as those in the Andrews Proceeding were made. The Paciocco Proceeding covered a much smaller group of people than the Andrews Proceeding. The specific PPN Fee claim, which was the forerunner of the residual dispute (being a claim that the PPN Fees were, on a proper construction of the contract, charged in breach of contract) was, however, introduced very late and immediately before trial via ‘Additional Points of Claim’ filed on behalf of Mr Paciocco. The two class actions were consolidated to form, in effect, one single class action (the ‘ANZ Bank Fees Class Action’).

8    The Paciocco Proceeding passed through an initial trial before Gordon J in late 2013, in which Mr Paciocco successfully contended that late payment fees were penalties (but not that they involved statutory unconscionability), but did not successfully contend that honour, dishonour, non-payment or overlimit fees were penalties or involved statutory unconscionability. Mr Paciocco also successfully contended that the two PPN Fees that were charged by ANZ to him in September 2008 and January 2009 were charged in breach of contract. Mr Paciocco alleged that ANZ was only contractually entitled to charge such a fee when the periodical payment was to be made to the account of another person or business (ie to someone other than the particular customer who had authorised the payment), and was not contractually entitled to charge such a fee when the periodical payment was to be made to the customer’s own account (eg from the customer’s transaction or savings account to another account in the name of the same customer, such as a loan account). The fees charged to Mr Paciocco fell into the second category, that is, the payments were to be made to another account in his name. In the Paciocco Proceeding, ANZ admitted Mr Paciocco’s individual claim in respect of the Periodical Payment Non-Payment Fees that were charged to him, and the Court ordered ANZ to repay Mr Paciocco those fees, together with interest.

9    Thereafter there were mutual appeals to the Full Court of the Federal Court, which were determined in 2015, and a further appeal to the High Court of Australia, which was determined in 2016 (ie Paciocco v Australia and New Zealand Banking Group Ltd (2016) 258 CLR 525). The focus of the appeals was on the penalty and statutory unconscionability claims.

10    Following disposition of the appeals, in early 2017, Mr Andrews sought and obtained leave to amend the Andrews Proceeding to withdraw all the penalty and statutory unconscionability claims, and make claims in respect of PPN Fees on behalf of the closed class of persons represented in that proceeding.

11    In 2016, following the Court’s order, ANZ undertook a remediation program (the ‘Remediation Program’), by which it sought to refund to customers all PPN Fees it had charged during the period 1 January 2008 to 23 February 2016, together with an additional amount by way of interest compensation. The Remediation Program did not apply to PPN Fees that were charged to customers before 1 January 2008. It is to be noted that the amendments to the Andrews Proceeding to claim PPN Fees were ordered to take effect from 19 December 2016 (being the date when the amendment was notified).

12    In mid-2018, there was a mediation following which a settlement was reached (recorded in the Deed), one integer of which was that Mr Andrews agreed to open the class in the Andrews Proceeding so as to include in it all persons who had been charged PPN Fees, for the purpose of achieving final resolution of all claims by ANZ customers in respect of PPN Fees charged in the relevant period.

13    By orders made on 15 March 2019, the Court:

(1)    consolidated the Andrews Proceeding and the Paciocco Proceeding to simplify the process of giving notices to group members, and settlement distribution in the event the settlement is approved;

(2)    opened the class in the Andrews Proceeding, and made orders requiring persons who thereby became group members to register by a certain date if they wished to participate in any distribution from the proposed settlement. The class-opening orders amended the group definition so that it extended to all persons who between 1 August 2003 and 23 February 2016 were customers of ANZ and were charged PPN Fees by ANZ; and

(3)    made directions for the publication of notices to group members of the proposed settlement, and any applicable opt out rights. The time for group members to take a step was extended by subsequent order to 30 August 2019.

14    Two relevant features of the group the subject of the consolidated proceeding, following the class-opening orders should be noted:

(1)    First, it confined the class only to persons who had been charged PPN Fees (formally removing a large number of group members who had signed up in respect of the broader fee challenges which had been disposed by the High Court proceedings and struck out from the claim at the time the PPN Fee amendments were made).

(2)    Second, it extended the claim period back in time to 1 August 2003, which was the first date on which ANZ had charged PPN Fees. Previously, the claim period in the closed class Andrews Proceeding had commenced in May 2004, whereas the claim period in the closed class Paciocco Proceeding was not so limited, and practically extended back to 1 August 2003 so far as PPN Fees were concerned.

THE PROPOSED SETTLEMENT

15    The proposed settlement embodied in the Deed and the accompanying Settlement Distribution Scheme (the ‘Scheme’) involves the following basic elements:

(1)    a settlement sum of $750,000 being made available to ‘Registered Group Members’ (namely, the group members in the closed class Andrews and Paciocco Proceedings who had signed up before settlement (the ‘Existing Group Members’));

(2)    a further settlement sum of up to $750,000 being made available to ‘Participating Unregistered Group Members’ (namely, those persons who became group members upon the contemplated class opening subject to their becoming registered by a specified date (the ‘New Group Members’)). The quantum of the further settlement sum depended on how many New Group Members registered, and as events transpired is $13,901.89, reflecting that notwithstanding the widespread notice procedures relatively few further group members evinced interest in registering; and

(3)    the total settlement sum (which as I will explain below, is $763,901.89) being treated as a common fund, and (following deductions) being distributed on an equal basis as between ‘Participating Class Members (namely, those Existing Group Members and New Group Members who the Administrator is satisfied was charged at least one PPN Fee, subject to them having provided bank details to facilitate payment, or an express instruction that they wish to receive a cheque). Proposed distributions are to be flat, regardless of how many PPN Fees were charged, a course which is justified based on the logistical impossibility of adopting a more nuanced course.

The Relevant principles

16    The principles informing whether or not a settlement should be approved pursuant to s 33V are uncontroversial, and are set out in a number of cases, including: Australian Securities and Investments Commission v Richards [2013] FCAFC 89 at [7]-[8]; Kelly v Wilmott Forests Ltd (in liquidation) (No 4) [2016] FCA 323; (2016) 335 ALR 439 at [62]-[77]; Blairgowrie Trading Ltd v Allco Finance Group Ltd (Recs & Mgrs Apptd) (In Liq) (No 3) [2017] FCA 330; (2017) 343 ALR 476 (‘Blairgowrie’) at [81]-[85]; and Caason Investments Pty Ltd v Cao (No 2) [2018] FCA 527 at [12]-[13].

17    Ultimately, the Court’s fundamental role in approving a proposed settlement is to assess whether it is fair and reasonable, having regard to the interests of the class members who will be bound by it.

18    Justice Beach conveniently summarised the relevant principles in Blairgowrie:

[82]    First, there is no single way in which a settlement should be framed, either as between the applicant/group members and the respondents (inter partes) or in relation to sharing the compensation as between group members (intra-group). Reasonableness is a range. The question is whether the proposed settlement and scheme fall within that range.

[83]    Second, the Court’s role is not to second-guess the strategic decisions made by the applicant’s legal representatives, but rather to satisfy itself that the decisions are within the reasonable range of potential decisions, having regard to the circumstances which are known by and reasonably knowable to the applicant and its legal representatives, and that there has been a reasonable assessment of the relevant risks based on such circumstances.

[84]    Third, there is no definitive set of factors that must or may be taken into account in approving a settlement. But factors relevant to an assessment of the reasonableness of a proposed settlement include:

  (a)    the complexity and duration of the litigation;

  (b)    the stage of the proceedings;

(c)    the risks of establishing liability, establishing damages, and maintaining the class action;

(d)    the ability of the respondent to withstand a greater judgment than the prospective settlement sum;

(e)    relatedly, the range of reasonableness of the settlement in light of the best recovery;

(f)    the range of reasonableness of the settlement in light of all the risks of litigation; and

  (g)    the reaction of the class to the settlement.

19    Then usefully, the Court of Appeal of the Supreme Court of Victoria in Botsman v Bolitho (2018) 57 VR 68 at 111 (Tate, Whelan and Niall JJA) said (citations omitted):

[204]    The question of fairness interposes itself at various levels. Most obviously, there will need to be consideration of the fairness of a proposed settlement sum.

[205]    The Court is being asked to approve a compromise of litigation. Inevitably, that will require an assessment of whether the plaintiff is likely to succeed in the action, the measure of damages that a successful judgment would yield, the prospects of recovery, and the expenditure in costs, time and effort that would be required to bring the proceedings to a conclusion.

[206]    That assessment does not involve a simple calculus but calls for matters of judgment based on imperfect knowledge and is influenced by the appetite for risk. It will be informed by the complexity and duration of the litigation and the stage at which the settlement occurs. It is important to acknowledge that it is the state of imperfect knowledge and the existence of risks that will have likely induced the settlement. It follows that those matters should be accorded a degree of prominence in any assessment of the reasonableness of the settlement.

[207]    Those considerations mean that there will rarely, or ever, be a single correct settlement. Strategic decisions must be factored into account but it is not the role of the Court to second guess those decisions.

[208]    The question of fairness will also be relevant to the distribution of the settlement sum, particularly where, as is usually the case, the group members will receive less than their claimed losses and the costs of bringing the proceeding (both in terms of legal costs and funding costs) will need to be accounted for. It follows that there will often be questions of fairness as between group members, particularly where some, but not all, of the group members have funded the litigation or where it may be necessary to apportion the settlement sum between group members based on differences in their respective claims.

The materials in support of THE APPLICATION

20    The application is supported by a partially confidential Counsel’s opinion by Mr William Edwards dated 3 December 2019, which traversed the prospects of the applicant’s success. I accept Mr Edwards’ opinion.

Reasonableness of the proposed settlement

21    Turning then to the question of whether the proposed settlement is fair and reasonable, for the reasons set out in the remainder of this judgment, I am of the view that the proposed settlement embodied in the Deed and the distribution for which the Scheme provides represents a fair and reasonable compromise of the claims made on behalf of group members, and is in the interests of group members.

Consideration of the fairness and reasonableness of the settlement sum

22    I turn first to the assessment of the reasonableness of the settlement sum in the aggregate. I will consider separately the settlement sum of $750,000 for Existing Group Members, and the settlement sum of up to $750,000 for New Group Members.

23    While the question of the fairness of distribution is considered below, this does bear on an assessment of the fairness and reasonableness of the aggregate settlement contributions: see, eg, Peterson v Merck Sharp & Dohme (Aust) Pty Ltd (No 6) [2013] FCA 447; Peterson v Merck Sharpe & Dohme (Aust) Pty Ltd (No 7) [2015] FCA 123, per Jessup J.

24    In the circumstances, the total settlement sum (being the $750,000 in respect of Existing Group Members plus the $13,901.89 in respect of New Group Members) is $763,901.89. I consider, based upon the opinion of Counsel and my own assessment of the proceedings, that the total settlement sum is fair and reasonable and in the interests of group members.

Consideration of the fairness and reasonableness of the releases required to be given by group members pursuant to the Deed

25    The Deed contains covenants by which the applicant and group members give releases to ANZ. The ambit of these releases was specifically drawn to the attention of group members in the notice issued by the Court pursuant to orders dated 15 March 2019.

26    While they are broadly drafted, in practical terms the releases do not extend beyond the matters the subject of the proceeding, so as to effect releases of unconnected claims.

27    In my view, it is fair and reasonable and in the interests of group members to give the releases as the price of obtaining the settlement offered.

Consideration of the fairness and reasonableness of the Scheme, and the deductions from the settlement sum

28    The distribution of the fund is governed by the Scheme. The Scheme provides for a distribution only to ‘Participating Class Members’. This term is defined so as to ensure that the settlement sum only goes to those group members who the Administrator can be satisfied incurred at least one PPN Fee in the period (a necessary limitation, in circumstances where the ANZ Bank Fee Class Action initially, as referred to above, claimed relief in respect of a wide variety of exception fees, not just PPN Fees).

29    The Scheme provides for distribution on a ‘common fund’ basis, which involves deduction of three categories of payment, prior to distribution of the residue. Those categories are:

(1)    the ‘Applicants’ Reimbursement Payment’;

(2)    ‘Administration Costs’; and

(3)    the ‘IMF Reimbursement Payment’.

30    I will deal with the specific categories of proposed deduction, and then elaborate on why a common fund basis of distribution is fair and reasonable.

Deduction of the applicant’s reimbursement payment

31    The Scheme makes provision for a further deduction from the common fund, namely a reimbursement payment to each of the applicants of $300 (being a total of $900).

32    The affidavit evidence deposed to the time expended by the applicants in carrying out their role on behalf of group members over a long period of time. Given the small sums involved I consider this deduction to be appropriate. I am mindful of what has been said by the Court in Modtech Engineering Pty Ltd v GPT Management Holdings Ltd [2013] FCA 626 at [62]-[73] as to the need to disclose the basis for such claims. In my opinion, where a claim is made in such a small amount, which is supported by evidence in affidavit form verifying that the applicant has spent time acting on behalf of Group Members, the Court should be prepared, in its discretion, to proceed without requiring detailed documentary proof of time expended.

The proposed deduction of administration costs

33    Administration costs are a necessary incident of the settlement. It is uncontroversial that it is fair and reasonable that the cost of administering the fund be borne by the fund. That cost is not, in any event, expected to be significant given that data has been collected through the registration process. The evidence of Mr Foale was that administration costs are likely to be in the order of around $23,500 (excluding GST).

The proposed deduction of the IMF Reimbursement Payment, and the common fund basis of the proposed distribution

34    It is invariable that in class actions the settlement distribution schemes make provision for the deduction of the reasonably assessed costs of the proceeding prior to any distribution being made to group members. The ‘IMF Reimbursement Payment’ represents costs incurred by IMF – the amount proposed in the evidence of Mr Foale is $500,000.

35    The solicitor and client costs incurred by IMF in the ANZ Bank Fees Class Action have been many millions of dollars, and, the evidence of Mr Foale is that the adverse costs liability also compromised by the Deed was quantified at $13.5 million. IMF’s cost entitlement was vastly greater than the aggregate value of the claims of group members in respect of PPN Fees. While IMF recovered monies from an associated settlement towards common costs expended in the ANZ Bank Fees Class Action (approved in Farey v National Australia Bank Ltd [2016] FCA 340 (‘Farey’)), IMF is still substantially out of pocket in respect of the ANZ Bank Fees Class Action.

36    In the present case, all members of the closed class Andrews Proceeding and the closed class Paciocco Proceeding (that is, all Existing Group Members) were party to common fund litigation funding agreements with IMF. The effect of those contracts was that IMF was entitled to satisfy itself from any recoveries group members made in respect of its outstanding costs liabilities for funding the ANZ Bank Fees Class Action (including adverse costs payable to ANZ).

37    In the circumstances that have arisen, if IMF’s contractual entitlements were adhered to, then the entirety of the value of Existing Group Member claims in respect of PPN Fees ($750,000) would go to IMF in partial discharge of their liabilities under the funding agreements.

38    For the purposes of the settlement, IMF was prepared to make available to group members a sum of money to ensure they received something in hand from the settlement, notwithstanding IMF’s view that it was entitled under its litigation funding agreements to reimburse itself to the full extent of the settlement. IMF’s attitude in this respect assisted me in forming the view that the settlement was fair and reasonable and in the interests of the Existing Group Members, who would (by reason of IMF’s attitude) receive something, whereas they might otherwise receive nothing.

39    The situation of the New Group Members is somewhat different. They did not enter litigation funding agreements with IMF, and are not contractually liable to reimburse IMF for the costs of the ANZ Bank Fees Class Action generally. However, equity and justice dictate that they should bear a proportion of costs which have been expended in procuring a result on their behalf. Equity and justice further dictate that they should not receive greater distributions than those funded group members who by their contracts with IMF procured the funding which enabled the proceeding to be brought. In Money Max Int Pty Ltd v QBE Insurance Group Ltd (2016) 245 FCR 191 at [138], the Full Court approved what Beach J had said in Farey at [30]:

… these orders, appropriately in my view, equalised the contribution each group member made towards the costs of the prosecution of the proceeding (including IMF’s funding commission), irrespective of whether or not that group member had entered into an agreement with IMF. In effect, what was put in place was a common fund type mechanism to ensure that there were no “free riders”.

In the present case, there is no need to consider whether or not the funding commission is a ‘cost’ (as no funding commission is to be charged) but it is just that the costs of the proceeding should be equalised as between all group members who benefit. A situation should not arise whereby Existing Group Members pay over all their proportion of the settlement to IMF to pay for the costs of the ANZ Bank Fees Class Action whereas New Group Members do not contribute at all. The situation should not be any different just because IMF has agreed to claim a lesser amount from Existing Group Members than its contractual entitlements.

40    The solution to this which is reflected in the Scheme is to treat the settlement sum as a common fund, and to spread the amount of the IMF Reimbursement Payment over all participating group members. I consider this to be fair and reasonable in the circumstances. Particularly is this so when:

(1)    the amount of further costs expended by IMF in funding the PPN Fee claimants in the Andrews Proceeding since late 2016, from which they ultimately benefit, has itself been substantial; and

(2)    the quantum of the sum in fact attributable to New Group Members is so small that were their relative proportion of that sum to be charged to them they would almost certainly be no better off than the common fund proposal put forward.

Limiting payments to ‘Participating Class Members’

41    The Scheme proposes that distributions shall be limited to ‘Participating Class Members’ which is defined to be such persons who registered with IMF or Maurice Blackburn by the relevant date (ie Existing Group Members or New Group Members) who also satisfy the following conditions:

(1)    ‘the Administrator is satisfied, on the basis of information supplied to it by ANZ and/or by the Class Member, that the person was charged at least one PPN Fee by ANZ during the Relevant Period’; and

(2)    ‘the person has, prior to calculation of the Final Distribution Amount provided to Maurice Blackburn either:

(a)    a current bank account number for the purpose of facilitating payment of the Class Member’s Final Distribution Amount by way of EFT; or

(b)    an express instruction that they wish to receive their Final Distribution Amount by way of cheque’.

42    The first condition is appropriate, as the effect of the consolidation and class opening orders was to limit the class to persons who incurred PPN Fees. Notwithstanding the passage of time, the Administrator should not pay out to persons which it is not satisfied were charged at least one such fee. ANZ has tried to identify from its records persons who were charged at least one PPN Fee, and it was open to group members to supply their own evidence. The Scheme does not limit the kind of evidence upon which the Administrator can act, and it would be open to the Administrator to accept a statement from a group member that they believe they were charged such fees, but they no longer have the documentation to prove it.

43    The second condition is also appropriate. It is fair and reasonable to limit participation only to those Existing Group Members and New Group Members who have taken the trouble to provide bank details, or specifically instructed they wish to receive a cheque. It would be cost-prohibitive to require the administrator to seek to locate details of, and correspond with, thousands of group members so as to work out how to send small amounts of money to them.

Other provisions of the Scheme

44    The Scheme also contains a number of other provisions, which are unexceptional:

(1)    it makes provision for interest on the settlement sum (if any) to be applied first to administration costs, and otherwise to be distributed;

(2)    it makes provision for the Court to supervise the administration of the Scheme; and

(3)    it makes provision for any unallocated amount to be paid to the Consumer Action Law Centre if it is not feasible to distribute it to group members. I would anticipate this would occur if the writing of cheques is uneconomic, or if the amount cannot be reasonably divided between the number of group members because further distributions would result in fractions of cents.

Conclusion

45    I have referred above to how fairness is to be approached. Scientific exactitude is not to be expected of settlements of aggregate proceedings. This is of particular relevance to those terms of settlements providing for distribution of an amount which fairly represents the aggregate value of the claims. Courts have recognised that there is a balance to be struck between fine-tuning of settlement allocations, and the costs of undertaking an exercise which is designed to ensure that each group member receives such proportion of the settlement sum as reflects his or her own claim (and the likelihood of individual success in respect of it). In Camilleri v The Trust Company (Nominees) Ltd [2015] FCA 1468 at [43], Moshinsky J said that it was relevant to whether a settlement should be approved ‘whether the costs of a more perfect assessment procedure would erode the notional benefit of a more exact distribution’. Similar comments were made by Osborn JA in Matthews v AusNet Electricity Services Pty Ltd [2014] VSC 663 at [240].

46    In the present case, it is proposed to split the residue equally as between all Participating Class Members. It is logistically impossible to adopt any more mathematically precise way of splitting the residue of the settlement sum without spending vast sums to quantify the precise claims to adjusted interest that each group member may be entitled to. That course would defeat the object of the settlement, and would involve the very expense which the settlement is designed to avoid. The cost would, in all likelihood, entirely consume the settlement.

47    In my view, the proposed Scheme is fair and reasonable.

REACTION OF GROUP MEMBERS AND CONSIDERATION OF OBJECTIONS

48    The class that stands to benefit from the settlement numbers comprises over 5,341 persons.

49    While no formal objections have been lodged by group members, 36 group members have communicated to Maurice Blackburn or IMF their dissatisfaction, which communications I have read and considered. This number represents a small proportion of the likely total number of group members and for that reason all relevant communications should be assessed in that context.

50    The communications of the 36 group members, many of which cannot be characterised as containing reasoned objections, raise recurrent themes that fall into the following categories:

(1)    complaints concerning the fact that group members do not have records to substantiate whether or not they were charged a PPN Fee (some positively asserting they were charged them, and others not); and

(2)    relatedly, complaints that it was unreasonable to trust ANZ to work out whether or not persons had been charged PPN Fees.

51    I do not consider these objections should prevent the settlement being approved. The settlement sum, which is only in respect of the PPN Fee claims, should only go to persons who incurred PPN Fees. The Scheme makes provision for this to be determined on the basis of ‘information supplied to it by ANZ or by the Class Member’. Many group members will not have records. ANZ has extensively searched its own records over a long period of time. It is not unreasonable to allow the Administrator to rely on ANZ’s searches in this regard, as there is no reason to doubt that ANZ has acted honestly and thoroughly in performing them. In such circumstances, I proceed on the basis that all parties have used all reasonable endeavours to identify group members who are entitled to participate. If for some reason, persons (including objectors) dispute ANZ’s inability to confirm they were charged a PPN Fee, and can satisfy the Administrator they were so charged, the Administrator can admit them.

52    My remarks above are not intended to suggest that the Administrator is bound to let in any of these persons, only that it is up to the Administrator to make such inquiries as it considers appropriate. It may well be appropriate to require some proof of incurrence of PPN Fees by any particular group member, in circumstances where ANZ’s records have not been able to establish that such a fee was incurred.

CONCLUSION

53    For these reasons I considered it appropriate to approve the proposed settlement embodied in the Deed, and the distribution for which the Scheme provided.

Associate:

Dated:    10 March 2020