Federal Court of Australia

Lay v PTTEP Australasia (Ashmore Cartier) Pty Ltd (Settlement Distribution) [2023] FCA 242

ORDERS

THE COURT ORDERS THAT:

Settlement Scheme

1.    Pursuant to s 33V or s 33ZF of the Federal Court of Australia Act 1976 (Cth) (FCA Act), the Court approves the settlement scheme dated 3 March 2023 (Scheme).

Deductions from the Settlement Distribution Fund

2.    Pursuant to s 54A(3) of the FCA Act, the report of the referee, Ms Kerrie-Ann Rosati dated 13 February 2023, be adopted by the Court save for paragraph 245 and to the extent the report refers to costs yet to be incurred.

3.    Pursuant to s 33V(2) of the FCA Act, a reimbursement payment in an amount of $30,000 be approved from the settlement distribution fund (as defined under the Scheme) to Mr Daniel Aristabulus Sanda in recognition of his role as applicant in the proceeding up until 23 February 2023.

4.    Pursuant to s 33V(2) of the FCA Act, the amount of Mr Sanda and Mr Gustav Lay’s costs in the sum of $28,316,727.79 as assessed by Ms Rosati, be approved from the settlement distribution fund.

5.    Pursuant to s 33V(2) of the FCA Act, the amount of Harbour Fund II, LP’s:

be approved from the settlement distribution fund.

6.    Subject to further order, pursuant to s 33V(2) of the FCA Act, the amount of Maurice Blackburn Pty Limited’s costs of, and incidental to, the settlement approval in the sum of $250,000 be approved from the settlement distribution fund.

Reference

7.    Pursuant to s 37P(2) and s 54A of the FCA Act and r 28 of the Federal Court Rules 2011 (Cth) (FCR):

8.    By 4pm on 30 April 2023, the Referee submit the Report to the Court of no more than ten pages, addressed to the District Registrar, in accordance with FCR 28.66.

9.    Mr Roland Matters be appointed as the Referee.

10.    The applicant deliver to the Referee forthwith a copy of these orders, together with a copy of FCR 28 and a copy of a briefing note and the tax invoices for the fees rendered by Webb Henderson that are the subject of the Relevant Question.

11.    The Referee have liberty to seek directions with respect to any matter arising in the Reference.

Confidentiality

12.    Pursuant to ss 37AF(1)(b) and 37AG(1)(a) of the FCA Act, in order to prevent prejudice to the proper administration of justice and until the day that is 49 days after the date on which these orders are entered, the material identified in Schedule B not be published or disclosed.

Reference for Tender

13.    On or by 30 March 2023, subject to further order, the applicant provide to the Associate to Justice Lee the names of three proposed referees to conduct an inquiry and report into the appointment of a scheme administrator.

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

Schedule A

RELEVANT QUESTION

What are the reasonable costs incurred by Harbour Fund II, L.P. in respect of the fees rendered by Webb Henderson pursuant to the definition of “Legal Costs” in the Funding Agreement?

Schedule B

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from the transcript)

LEE J:

A    INTRODUCTION AND BACKGROUND

1    In Sanda v PTTEP Australasia (Ashmore Cartier) Pty Ltd (Settlement Approval) [2023] FCA 143 (Settlement Judgment), I approved the settlement of this class action pursuant to s 33V(1) of the Federal Court of Australia Act 1976 (Cth) (FCA Act).

2    It is unnecessary for me to rehearse the background to this proceeding, save to note that earlier this year, I made orders to bifurcate the settlement approval process such that following any approval, it would be necessary to determine subsequently the just distribution of funds paid under the settlement pursuant to s 33V(2) of the FCA Act. I have explained at length elsewhere why this approach has fidelity to the text of s 33V: see Gill v Ethicon Sàrl (No 11) [2023] FCA 229; Davis v Quintis Ltd (Subject to Deed of Company Arrangement) [2022] FCA 806.

3    I determined to take this course because on the last occasion, Mr Daniel Aristabulus Sanda (who was at that time the lead applicant) sought to appear by two counsel: one barrister supporting the s 33V application (instructed by Maurice Blackburn Lawyers Pty Limited (MBL), the solicitors who acted for Mr Sanda at the initial trial); and one barrister opposing, among other things, the payment from any approved sum of the amounts claimed by MBL: see Settlement Judgment (at [2]–[7]).

4    To provide Mr Sanda with an opportunity to ventilate those objections, I made several orders at the settlement approval hearing, including an order substituting Mr Gustav Lay as the applicant in the proceeding pursuant to s 33T of the FCA Act. I also made an order granting leave to amend the statement of claim to include Mr Sanda as a group member pursuant to ss 33K and 33ZF of the FCA Act: see Settlement Judgment (at [6], [34]).

5    Today, as anticipated, Mr Sanda appeared by different counsel, Drs Cashman and Townsend, to oppose some orders sought for the distribution of the settlement proceeds.

6    Broadly speaking, at the hearing, counsel for Mr Sanda pressed three issues relating to the payment of sums out of the approved settlement.

7    First, there is controversy as to whether I should adopt the report prepared by the referee appointed to inquire into the reasonableness of the costs incurred by Mr Sanda in the proceeding. Mr Sanda contends he was not afforded procedural fairness by the referee. Secondly, Mr Sanda raised an issue with respect to fees proposed to be charged by MBL in relation to adjectival interlocutory applications filed in the proceeding last year. Thirdly, Mr Sanda submits that the amounts proposed to be deducted from the settlement proceeds by the litigation funder, Harbour Fund II, LP (Harbour), are not just in all the circumstances.

8    I will deal with each issue in turn.

B    ADOPTION OF THE REFEREE’S REPORT

9    Ms Kerrie-Ann Rosati was appointed as a referee pursuant to orders made by Perram J in November 2022 to provide a report with respect to the reasonableness of Mr Sanda’s costs for work done up to the date of the Report, and Mr Sanda’s costs (including costs of administering the settlement) yet to be incurred. Ms Rosati prepared a report dated 13 February 2023 (Report).

10    There is no need for me to recite at length the principles that inform the adoption of a referee’s report. As I noted in Smith v Commonwealth of Australia [2019] FCA 2193 (at [11]), a referee is always under the control of the Judge in participating in the special mode of trial constituted by the reference and the Court reserves a discretionary power to decide the nature of the inquiry. With that said, the Court should extend some degree of deference to referees in the conduct of their inquiry, without detracting from the Court’s ultimate control of the procedure.

11    There is no fixed content to the duty to afford procedural fairness in the reference process. As I explained in Smith (at [14]–[17]):

14.    In making submissions in advance of the case management hearing, it was submitted by the Commonwealth that in the event referees gather additional material on contentious matters through their own inquiries, procedural fairness “will require that the parties have an opportunity to comment on that material”. The authority for this proposition was said to be a decision of Rogers CJ in Comm D being Telecomputing PCS Pty Ltd v Bridge Wholesale Acceptance Corporation (Aust) Ltd (1991) 24 NSWLR 513 at 523, 524–525 . For the benefit of the referee, I should record my view that this submission expresses the relevant proposition at too high a level of generality.

15.    … It is trite that the fairness of a procedure depends upon the nature of the matters in issue, and what would be a reasonable opportunity to be afforded to parties depends entirely upon the bespoke circumstances of the case. As Mason J stated in Kioa v West (1985) 159 CLR 550 at 585 , “the expression ‘procedural fairness’… conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of a particular case”. More recently, in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 Gleeson CJ at 13–14 [37] noted that “fairness is not an abstract concept” and the concern of the law is to avoid practical injustice.

16.    Procedural fairness traditionally involves two requirements: the fair hearing rule and the rule against bias. It is only the former that is relevant here. The hearing rule requires the decision-maker to afford a person a reasonable opportunity to be heard before making a decision affecting their interests. There is no doubt referees are required to afford procedural fairness to parties. Telecomputing is authority for the unremarkable proposition that there is no better guide to what procedural fairness requires in a given case than “the test of fairness”. Fairness usually demands that each party be afforded a proper opportunity of putting before the referee contentions; and an opportunity to comment on information gathered on contentious matters; and that a referee should not form a concluded view nor close his or her mind to the contentions of the parties before all material is gathered.

17.    In another case decided by Roger CJ Comm D being Beveridge v Dontan Pty Ltd (1991) 23 NSWLR 13, the Chief Judge (who more than any other judge, revived and moulded the use of referees in commercial litigation), made clear that what procedural fairness demands in the hearing of a reference is to be answered bearing in mind the nature of the issues posed, the expertise of the referee, the submissions made by the parties and any other relevant matters: at 21G, 24F. Put another way, fixing upon a fair procedure in a given case is a bespoke task dependent upon all the circumstances.

12    Procedural fairness in the present context requires the referee and the Court to bear in mind the bespoke issues in the proceeding, balanced against the need to ensure that the referee’s inquiry and the preparation of the report are undertaken in a sensible, cost-effective, and proportionate way. Of course, Div 28.6 of the Federal Court Rules 2011 (Cth) (FCR) governs the conduct of a costs reference and includes several safeguards, including, for example, FCR 28.65(1), which allows a party to apply to the Court for directions about how the inquiry should be conducted or any matter arising in the inquiry. The Referee and Assessor Practice Note (GPN-REF) also provides that any inquiry be conducted in accordance with the requirements of procedural fairness (at [2.11]).

13    It is worth making two points immediately. First, there must be a way of ensuring that inquiries and references are conducted in accordance with the overarching purpose under Pt VB of the FCA Act. Certainly, at least in my experience, this has been assisted by ensuring that any referee’s report does not exceed more than a relatively modest number of pages. In this case, the Report spans no less than 404 paragraphs over 105 pages. Additionally, there is an annexure to the Report prepared by the solicitors for Mr Sanda comprising 192 paragraphs over 50 pages. This is patently excessive. It should be emphasised that every cent spent on the Report and submissions made to the referee is another cent which is not paid to group members pursuant to a settlement. This is a paradigm example of a report which is too long, too detailed, and too expensive.

14    Secondly, if a person affected considers there is some real basis for objection to the Report, a supplementary question may be directed to the referee to address a clarifying question if the issue is, upon consideration, one of substance. This can often resolve any procedural fairness issues that may have arisen through inadvertence. In the present case, Mr Sanda submits he was not afforded procedural fairness by the referee because, in Dr Cashman’s terms, the inquiry was a “unilateral determination” prepared without Mr Sanda being invited to participate. It was said that Mr Sanda’s objections as to costs were not brought to the referee’s attention. In particular, Mr Sanda contends that he was not given the opportunity to make submissions to the referee as to certain costs incurred by MBL in instructing Arnold Bloch Leibler (ABL) with respect to certain interlocutory applications filed last year, and these costs are not just or reasonable sums to be deducted from the settlement fund.

15    Apart from the fact that MBL did provide relevant material to the referee, given the terms of this reference, this submission elides two distinct steps. As I explained during the hearing, the first issue concerns the adoption or otherwise of the referee’s report. The second step, if the report is adopted, is the existence of an implicit finding the costs were reasonably incurred qua the client pursuant to the terms of the relevant retainer agreement. But such a finding is not necessarily determinative of the final question for the Court as to whether the amounts proposed to be deducted from the settlement sum are just within the meaning of s 33V(2) of the FCA Act: T23.18–23.47.

16    Subject to the issue concerning ABL’s fees (which I address in the following section of these reasons), in the end Mr Sanda was prepared, subject to minor exceptions, for me to adopt the Report and avoid pressing any procedural fairness issue, provided the Court discharges its obligation under the final step noted above and, in doing so, considers Mr Sanda’s submissions as to what costs are reasonable and just. This was a sensible course. Approaching such a report as though it was a submission of a costs consultant made in support of a taxation, and examining it in minute detail, is precisely the sort of approach that should be avoided in cases of this type.

C    COSTS GENERALLY AND AS TO INTERLOCTORY APPLICATIONS

17    As noted above, Dr Cashman raised an issue about a sum of $122,966.40 which has been charged by MBL in instructing ABL. Broadly speaking, this sum relates to the dispute which arose between MBL and Mr Sanda and work done with respect to interlocutory applications agitated by Dr Cashman in 2022 relating to, inter alia, applications to produce documents.

18    During the hearing, Mr Moore SC (who was granted leave to appear for MBL) pointed out that MBL had been placed in an awkward position with respect to the interlocutory applications. On the one hand, MBL was anxious to facilitate a settlement which was clearly in the interests of group members (and one which Mr Sanda supported). On the other hand, Mr Sanda had provided a power of attorney to Mr Greg Phelps, a partner at Ward Keller, who had been instructed by Mr Sanda to re-engage Dr Cashman as “special counsel” in the proceeding for the purpose of providing independent legal advice in relation to the conduct of the proceeding generally by MBL.

19    But this was a dispute that went to the retainer of the solicitors, and it was the duty of the solicitors to resolve it to protect their own position and ensure they were acting upon instructions. Although I am not being critical, and I am sure it was done with the best of intentions, why it was necessary for MBL to instruct other solicitors is a little difficult to fathom.

20    As to the costs generally, having generally adopted the Report, and accordingly, Ms Rosati’s conclusions as to reasonableness pursuant to the retainer, in the absence of some compelling argument to the contrary it appears just for the amounts referred to in the Report to be deducted from the settlement sum. With that said, I do not think it would be just for the balance of the sum of $122,966.40 relating to ABL’s fees (see Report (at [245])) to be deducted from the fund, which would otherwise go to group members. I am not satisfied it was necessary for a large, highly experienced class action firm to appoint external solicitors in respect of an internecine dispute between it and their now erstwhile client, Mr Sanda. I will, however, allow MBL to recover the costs of counsel on the interlocutory applications. In any event, stepping back and assessing the costs as a whole, I consider the solicitors have been more than adequately compensated for the work that they have undertaken in relation to the class action generally.

D    COSTS RELATING TO LITIGATION FUNDING

21    Turning to the third issue, Dr Cashman has made a complaint about the amounts proposed to be deducted from the settlement fund by the litigation funder, Harbour Fund II, LP (Harbour).

22    Harbour seeks an amount of $57,750,000 for its commission, in respect of which a further $597,551.33 is sought for other funding costs and expenses. Of the latter sum, an amount of approximately $508,930 is in dispute, which relates to legal costs incurred by Harbour in engaging Webb Henderson, a firm of solicitors. Dr Cashman submits that these costs were incurred primarily, if not exclusively, for the purpose of protecting and advancing the interests of Harbour and, accordingly, ought not be recoverable because it is not just that such costs be deducted from the settlement proceeds.

23    More broadly, Dr Cashman contends that the commission sought by Harbour is excessive, and therefore not just in all the circumstances. In pursuit of this submission, Dr Cashman relies upon several objections made by Mr Sanda and other group members. In response, Harbour points to the extant funding agreements between it and each of the group members, by which those group members have agreed to pay Harbour an amount well in excess of the sum that it now seeks to recover pursuant to the undertaking it gave to the Court during the settlement approval hearing: see Settlement Judgment (at [24]). This amount not only includes Harbour’s proposed commission, but also the amount Harbour has paid Webb Henderson for its legal services.

24    It is unnecessary for the purposes of this judgment to address whether the Court can act as some sort of roving contract adjuster, pragmatically changing the bargain struck between a litigation funder and group members (who have reached their majority, are not under a legal disability, and have articulated no principled basis to interfere with the contract): see Settlement Judgment (at [26]). For reasons I have expressed elsewhere (see Liverpool City Council v McGraw-Hill Financial, Inc (now known as S&P Global Inc) [2018] FCA 1289 (at [37]–[58])), I do not believe that such an approach is consistent with legal and equitable principle.

25    Having said that, the decision I make does not turn on the question of power because, as a matter of discretion, having received the undertaking of the funder, I believe that the deductions proposed by Harbour are just in all the circumstances.

26    This was risky litigation. It simply would not have been pursued, nor would it have reached a successful conclusion on behalf of group members, unless those group members had the benefit of a third-party litigation funder, or a firm of solicitors prepared to conduct it wholly on a speculative basis. Indeed, given the risks involved in this litigation, one might query whether a firm of solicitors, acting rationally, would have been prepared to act on a speculative basis without deferring some aspect of that risk, but it is unnecessary to form a view one way or the other about this matter.

27    What is pellucid is that but for the existence of funding, some 15,456 Indonesian seaweed farmers would not have had the ability to recover their losses. This seems to me another example of the class action regime in Pt IVA of the FCA Act working and, despite its critics, providing access to justice for poor people who otherwise would have to cop their losses on their chins. As I said in Smith v Commonwealth of Australia (No 2) [2020] FCA 837 (at [81]–[82]):

81.     The term “access to justice” is commonly misused, most often by some funders who fasten upon it as an inapt rhetorical device. To those with a long and close involvement with litigation funding, it is evident that there is not only a danger in generalisation (and assuming all funders are the same), but there is also a danger of using well-worn phrases to obscure the reality that litigation funding is about putting in place a joint commercial enterprise aimed at making money. As I said in Turner v Tesa Mining (NSW) Pty Limited [2019] FCA 1644; (2019) 290 IR 388 (at 401 [41]): “the funder is not so much facilitating access to justice by the funded party as itself gaining access to justice for its own purposes”.

82.    … [I]t strains credulity to think that claims of this complexity and attended by such potential expense could have been litigated to a conclusion without third party funding of some sort. It seems to me a testament to the practical benefits of litigation funding, that these complex and costly claims have been able to be litigated in an efficient and effective way and have procured a proposed settlement. It must be recalled that an acceptable settlement was only forthcoming after a vast outlay of resources, and the assumption of risk of a third party funder for potential adverse costs.

    (Emphasis added).

28    All in all, it is critical in circumstances such as the present not to be influenced by hindsight bias. As I noted in Liverpool City Council (at [54]–[55]), following the crucible of a trial, the prospects of success have been brought into relatively sharp focus. To look back from where we are now and try and assess, ex ante, whether the class action endeavour was likely to yield success when first conceived (and when the funding agreements were first entered) creates real challenges.

29    The only qualification is that the funding agreement allowed Harbour to recover its reasonable legal costs. It seems to me (and Harbour did not resist) that the question of what fees constitute reasonable legal costs for the work conducted by Webb Henderson should be the subject of an expeditious, cost-effective reference. I will make orders to facilitate this course, limiting any report to ten pages.

E    FURTHER MATTERS

30    It is necessary to deal with three final matters.

E.1    Tender of Settlement Administration

31    The draft orders provided to me proposed that MBL be appointed as scheme administrator. I was provided with some material constituting a proposed budget for the settlement distribution, which indicates that the costs of the administration will total approximately $2,240,000. In the wake of a number of recent cases (including Lifeplan Australia Friendly Society Limited v S&P Global Inc (Formerly McGraw-Hill Financial, Inc) (A Company Incorporated in New York) [2018] FCA 379 (at [52]–[54])), hopefully the assumption that persisted among those conducting Pt IVA work that solicitors for applicants are to be appointed scheme administrators, is slowly being dispelled.

32    A competitive tendering process for the administration of a settlement approved by the Court is an important mechanism that is apt to reflect the Court’s protective and supervisory role in controlling the costs payable by group members in Pt IVA proceedings: see Bellamy’s Australia Ltd v Basil [2019] FCAFC 147; (2019) 372 ALR 638 (at 641 [13] per Murphy, Gleeson and Lee JJ); Gill v Ethicon Sàrl (No 11) [2023] FCA 229.

33    In many cases, it may be appropriate that the solicitors acting for an applicant in Pt IVA proceedings be appointed as scheme administrators, but if the Court is to protect the role of group members, it should attempt to facilitate a process whereby costs are minimised. This is merely a reflection of the need of the Court in making any order, consistently with the overarching purpose in Pt VB, to facilitate the inexpensive and efficient resolution of the proceedings.

34    Accordingly, I will make orders to initiate a tender process and for a referee to decide as to which response to the tender would best provide a fair and reasonable distribution of funds pursuant to the settlement scheme. Consistently with this course, I do not propose at present to approve any cost deductions relating to settlement distribution.

E.2    Confidentiality Orders

35    The draft orders also included orders proposing to prohibit the disclosure of information relating to, among other things, the funds available for the conduct of the proceeding and case strategy.

36    The confidentiality orders proposed are proportionate, directed to ensuring they are necessary in the administration of justice, and pertain to matters which are truly confidential: see Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 (at 663–664 [29]–[30] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ). Having said that, the applicant recognises that the suppression orders should only be in place for the time necessary to serve the ends of confidentiality.

37    Accordingly, I will make orders that the suppression orders cease upon the expiration period of any appeal from the two sets of settlement approval orders.

E.3    Costs of Settlement Approval Application

38    The only other outstanding matter is the costs incurred by MBL in relation to the settlement approval application.

39    In the circumstances, I propose to make a lump sum order in relation to an appropriate figure. I will direct that a one-page schedule of proposed costs, together with a copy of the account ledger in respect of the costs incurred since the conditional settlement was struck, be provided to my Chambers within seven days. I will then make an assessment on the papers as to the amount that I regard as just to be payable to MBL in respect of that work.

F    SUBSEQUENT DEVELOPMENTS

40    Following delivering the reasons set out above, I received further materials both on behalf of Mr Sanda and MBL.

41    The latter supplementary materials were provided to allow me to provide a “rough and ready” lump sum assessment of further costs payable to MBL. The former material was unsolicited submissions made on behalf of Mr Sanda, re-canvassing several matters that were in issue, or potentially in issue, at the hearing.

42    There is no reason why the issues the subject of supplementary submissions filed on behalf of Mr Sanda could not have been raised at the hearing, and I do not give leave for them to be raised belatedly. In any event, for reasons that are unnecessary to detail, I adhere to the views I have expressed above as to adopting the report of the referee, save for the issue as to ABL’s fees and future administration costs.

43    Turning to the further claim on the fund by MBL, the following costs are sought:

44    I was also told Deloitte personnel in Australia and Jakarta have assisted MBL with negotiations with Indonesian banks. Much preparatory work has been completed, and Deloitte has also reviewed the group member data and loss data to prepare for auditing the loss calculation for each group member. In addition to a $55,338.94 invoice that appears in the MBL office ledger, Deloitte has incurred a further $17,148 but have not yet invoiced this amount. The proposed settlement distribution costs include a further $15,000 for Deloitte to complete “the audit of the V3 forms which contain certain group member production data necessary for the settlement distribution”. It is asserted that this audit will need to be done in any event prior to settlement distribution and Deloitte, who are already familiar with the proceeding, are best placed to conduct the audit. These projected costs for Deloitte do not appear on the office ledger. Additionally, apparently fees for PricewaterhouseCoopers’ (PwC) tax advice have been incurred on the settlement scheme but have not been invoiced to MBL.

45    Further, the costs to date include the estimated costs of work being undertaken in Indonesia by Mr Phelps and what is said to be “a small team of Indonesian consultants during a four-week trip during February and March”. It is noted that the team are travelling from village to village to identify which group members are now deceased and to identify the appropriate person(s) to participate in the settlement on behalf of the deceased group member. To date, Mr Phelps and his team have visited 21 of 81 villages and have identified approximately 1,125 deceased group members. I am told Mr Phelps is about to leave Indonesia and he estimates that the latest trip cost $170,000. It is also suggested the work of Mr Phelps continue and a further four week trip take place. MBL consider this to be essential work and that Mr Phelps and his team, who are known to the village officials and group members, are best placed to do the work. The estimated cost of the next trip is a further $170,000 for Phelps Legal and $25,000 for MBL. MBL proposes that the Court “approve the costs of the next trip in advance, to be paid on a PAYG basis from the Settlement Sum”.

46    Hence, it appears a total sum of $1,084,765.66 is sought. As can be seen, what is set out appears to be an admixture of both past and future costs.

47    All this work on the settlement distribution has occurred without settling upon who should administer the fund and without the Court exploring how distribution could occur most cost effectively. Troublingly, at present, I have no visibility or transparency as to the significant sums charged, and proposed to be charged, by Phelps Legal. It is not my intention to approve any amount for future costs relating to work being done pursuant to the settlement scheme until the tender process has been completed, and I have worked out an appropriate means by which a settlement distribution should occur. My current intention, which will be communicated to the referee, is to continue to involve Phelps Legal in the process because of their pre-existing relationship with the group members. That firm will also be paid a fair and proportionate amount for the work they have undertaken, and in respect of which they have not been paid. With that said, I wish to have far better clarity in relation to the fees of Phelps Legal.

48    Further, to the extent that Deloitte has undertaken work which would be likely to be lost in the event that it does not complete a partly-performed retainer, then I will give consideration to Deloitte’s continued involvement. But, again, this is a matter that will need to be investigated by the referee. No doubt I am missing something, but I will need to know something more about why it was necessary to engage PwC to provide tax advice in a matter such as this, given past litigation clarifying taxation issues in relation to settlement funds such as the present.

49    Turning to MBL’s part-costs of well over $500,000, I must confess the sum proposed to be deducted seems very large, particularly given the extent of the fees already recovered in relation to this matter.

50    Again, perhaps I am missing something, but having appeared on many settlement approval applications as counsel and then approved many settlements, it is difficult for me to understand presently the necessity for the number of counsel involved, and also why the professional fees charged by the solicitors are so high. I am prepared to approve a sum of $250,000 for the settlement approval costs (which I consider to be quite generous even on a highly complex settlement application). If MBL are not content with that figure, then I give liberty to apply for there to be further submissions in relation to this issue when the issue returns to me as to appointing a scheme administrator, the future costs of the distribution and the costs incurred, and proposed to be incurred, by Phelps Legal and any other consultants.

G    CONCLUSION AND ORDERS

51    Accordingly, the Court will make orders facilitating the course outlined above.

Associate:

Dated:    21 March 2023