Federal Court of Australia

Fisher v BT Funds Management Ltd [2024] FCA 1166

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 33X of the Federal Court of Australia Act 1976 (Cth) (Act), by 4pm on 11 October 2024, the applicants issue a notice in the form appearing at the Annexure to these orders to persons who registered their interest in the proceeding with Shine Lawyers (registered individuals) by:

(a)    an email to the email address provided by each registered individual attaching a copy of the notice;

(b)    express post, for registered individuals who did not provide an email address but provided an address in Australia; or

(c)    registered post, for registered individuals who did not provide an email address but provided an address outside of Australia.

2.    Pursuant to s 33X of the Act, by 4pm on 11 October 2024, the applicants publish a copy of a notice in the form appearing at the Annexure to these orders on the website page for the proceeding on the Shine Lawyers’ website (https://www.shine.com.au/service/class-actions/bt-super-insurance-class-action).

3.    The requirements of s 33X(4) of the Act otherwise be dispensed with.

4.    Pursuant to s 37AF(1) of the Act, an interim confidentiality order be made over material identified by the applicants to be confidential or privileged in the affidavit of Craig Richard Allsopp affirmed 26 September 2024 and its annexures, and the applicants’ submissions in support of the applicants’ interlocutory application dated 26 September 2024, pending determination of the confidentiality of that material at the hearing on 20 November 2024.

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

ANNEXURE

FISHER & ORS V BT FUNDS MANAGEMENT LTD & ORS (VID826/2023)

NOTICE OF PROPOSED DISCONTINUANCE OF CLASS ACTION

    This notice contains important information about the proposed discontinuance of Fisher & Ors v BT Funds Management Ltd & Ors (VID 826/2023). You have two options:

    1. If you do not oppose the discontinuance, you do not need to do anything.

    2. If you oppose the discontinuance (or any part of it), you need to follow the steps set out below.

    You should read this notice carefully, as it concerns your rights. If there is anything in it that you do not understand, you should seek legal advice.

A. Why are you receiving this notice?

1.    The Federal Court of Australia has ordered that this notice be sent to persons who have registered their interest with Shine Lawyers in relation to the above class action, Federal Court of Australia proceeding VID 826/2023: Dannyallan Raymond Fisher & Ors v BT Funds Management Ltd (ACN 002 916 458) in its capacity as trustee for the Retirement Wrap, BT Super For Life, BT Super and Asgard Independence Plan Division Two (First Respondent) & Ors (Proceeding).

2.    The Proceeding relates to alleged breaches of trustee duties under superannuation legislation and the general law by the First Respondent and Westpac Securities Administration Limited (ACN 000 049 472) (Third Respondent) in relation to group insurance offered to superannuation fund members following a tender process. TAL Life Insurance Services Limited (ACN 003 149 157) (Second Respondent) was alleged to have been knowingly involved in those alleged breaches of trustee duties.

3.    The Applicants have litigated the Proceeding with the benefit of funding from Woodsford Group Limited and Woodsford Litigation Funding 9 LLP (Woodsford).

B. Reasons for and effect of the proposed discontinuance

4.    The Applicants have sought the leave of the Court to discontinue the Proceeding. This follows the Respondents' applications to strike out parts of the Applicants' statement of claim filed in the Proceeding and the serving of various materials on the Applicants by the Respondents. In view of those applications and materials, the Applicants, Shine Lawyers and Woodsford have agreed to discontinue the Proceeding.

5.    Under the proposed discontinuance:

(a)    The Proceeding will be discontinued.

(b)    The Respondents will pay an amount towards the Applicants' costs of bringing the Proceeding.

(c)    Woodsford will cease to fund the Proceeding and will not fund another proceeding against the Respondents arising out of the same or similar facts.

(d)    Shine Lawyers will cease to act in the Proceeding.

(e)    From 60 days after the date on which the discontinuance is approved, any limitation period (i.e. the time within which an action must be commenced) that applies to any group members to which the Proceeding relates shall begin to run again.

6.    If the Court grants leave to discontinue the Proceeding, this will not affect the rights of the Applicants or group members to pursue in another proceeding the claims brought in this Proceeding. You can seek advice from a lawyer about your options if you wish to do so.

7.    You are receiving this because you may be a group member in the Proceeding. To be a group member you must have been:

a)    a member of a superannuation fund of which the First or Third Respondent was the trustee; and

b)    a holder of a superannuation product issued by the First or Third Respondent as trustee that provided insurance cover under a group policy of insurance issued by the Second Respondent in the period 6 October 2017 until 1 April 2023.

8.    Discontinuance of the Proceeding requires approval by the Court. The discontinuance application will be heard on 20 November 2024.

C. What do you have to do?

9.    You have the following options:

D. Where can you get further information?

10.    Copies of relevant documents (including the statement of claim and defences) may be obtained from https://www.shine.com.au/service/class-actions/bt-super-insurance-class-action, or by emailing Shine Lawyers at btfmlegal@shine.com.au or telephoning 1800 870 492.

Please consider the above matters carefully. If there is anything of which you are unsure, you should contact Shine Lawyers or seek your own legal advice. Please bear in mind that while you should contact Shine Lawyers for further information as necessary, Shine Lawyers are unable to provide specific legal advice to group members.

Notice of Objection to Proposed Discontinuance

FISHER & ORS V BT FUNDS MANAGEMENT LTD & ORS

(VID 826 of 2023)

Complete this form only if you wish to submit an objection to the Proposed Discontinuance.

Your Notice of Objection will be considered by the Court when it is determining whether to approve the Proposed Discontinuance.

If you wish to object to the Proposed Discontinuance, or any aspect of it, your Notice of Objection must be received by the Court and the Applicants’ solicitors by 4:00 pm (AEDT) on 13 November 2024.

If you do NOT wish to object to the proposed Discontinuance, do NOT return this form.

TO:

-    The Federal Court of Australia, by email to the Victoria Registry at vicreg@fedcourt.gov.au; and

-    The Applicants’ solicitors, by email to btfmlegal@shine.com.au

The person identified below gives notice that the person OBJECTS to the Proposed Discontinuance of this proceeding.

A.    DETAILS OF OBJECTOR

B.    GROUND(S) OF OBJECTION

My submissions in support of my objection to the Proposed Discontinuance are as follows [set out in the space below any submissions you wish to make, attach additional pages if necessary]:

C.    ATTENDANCE AT HEARING on 20 November 2024 at 10.15am (AEDT)

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    These reasons concern the notification to group members of an application to this Court to approve a discontinuance of the proceeding under s 33V of the Federal Court of Australia Act 1976 (Cth) (Act) and the making of interim confidentiality orders.

2    By their interlocutory application dated 26 September 2024, the applicants have applied for an order approving the discontinuance of the proceeding pursuant to s 33V(1) of the Act. The applicants have also applied, pursuant to ss 33V and/or 33ZF of the Act, for an order that any limitation period that applies to any of the group members (including the applicants) shall begin to run again from 60 days after the approval of the discontinuance.

3    The applicants also sought an interlocutory order under s 33X of the Act for leave to give notice of the application for approval of the discontinuance to certain group members. Relevantly, the applicants sought an order under s 33X that notice be given:

(a)    in respect of each person who registered their interest in the proceeding with the applicants’ solicitors, Shine Lawyers (registered individuals), to the email or postal address provided by the registered individual; and

(b)    by publication on the website page for the proceeding on Shine Lawyers’ website.

4    The applicants further sought, pursuant to s 37AF(1) of the Act, an interim confidentiality order over material identified by the applicants to be confidential or privileged in the supporting affidavit of Craig Richard Allsopp affirmed 26 September 2024 and its annexures, and in the applicants’ submissions in support of the application for approval of the discontinuance, pending determination of the confidentiality of that material at the hearing of the application for approval.

5    Mr Allsopp’s affidavit exhibited a copy of the Discontinuance Deed entered into by the applicants, the respondents, Shine Lawyers and the litigation funding entities in this proceeding, Woodsford Group Limited and Woodsford Litigation Funding 9 LLP (collectively, Woodsford). Under the Discontinuance Deed, the applicants agree to file a notice of discontinuance of the proceeding pursuant to r 26.12 of the Federal Court Rules 2011 (Cth) following the receipt of the Court’s approval under s 33V of the Act. Discontinuance of a proceeding does not, of itself, affect the rights of the applicants or group members to bring another proceeding making the same claims. That is reinforced by r 26.14 which stipulates that discontinuance of a proceeding cannot be pleaded as a defence to a proceeding in relation to the same, or substantially the same, cause of action. Further, the terms of the Discontinuance Deed do not purport to extinguish or alter group member rights in respect of the underlying cause of action alleged in the proceeding that were held immediately prior to the issue of the proceeding. Pursuant to s 33ZE of the Act, the running of time against group members in respect of the claims in the proceeding has been suspended since the commencement of the proceeding. As noted above, the applicants seek an order that, if the discontinuance is approved, any limitation period that applies to any of the group members (including the applicants) shall begin to run again from 60 days after the approval of the discontinuance.

6    The applicants’ supporting submissions were filed on 26 September 2024. Submissions on behalf of the first and third respondents jointly were filed on 4 October 2024. No submissions were filed on behalf of the second respondent.

7    The application concerning notification of group members and the interim confidentiality orders were determined on the papers. The application for approval of the discontinuance is listed for hearing on 20 November 2024.

Relevant legal principles

8    Section 33V(1) of the Act stipulates that a representative proceeding may not be settled or discontinued without the approval of the Court.

9    Section 33X of the Act requires that notice of certain matters in relation to a representative proceeding be given to group members. Relevantly, s 33X(4) requires that group members be given notice of an application for approval of a settlement under s 33V unless the Court is satisfied that it is just not to give such notice. The notice requirement under s 33X(4) applies only to an application for approval of a settlement and does not apply to an application for approval of discontinuance: Simonetta v Spotless Group Holdings Limited [2017] FCA 1071 (Simonetta) at [19]; Tate v Westpac Banking Corporation (No 2) [2020] FCA 1374 (Tate) at [43]; Babscay Pty Ltd v Pitcher Partners [2020] FCA 1610 (Babscay) at [41] and Turner v TESA Mining (NSW) Pty Ltd (No 2) [2022] FCA 435; 314 IR 214 (Turner) at [32]. Section 33X(5), however, provides that the Court may, at any stage, order that notice of any matter be given to a group member or group members.

10    A number of cases have considered whether the Court should require that notice of an application for approval of the discontinuance of a representative proceeding be given to group members and, if so, the manner in which that should be done. Those cases include Simonetta, Tate, Babscay and Turner. Needless to say, each case turned on its own facts. The principal purpose of any notice under ss 33X is to ensure that group members can make informed decisions concerning their rights or interests: Melbourne City Investments Pty Ltd v Treasury Wine Estates Limited (2017) 252 FCR 1 at [88]. In Turner, Murphy J expressed the view that, where it is likely that many group members are aware of the proceeding, it would be inappropriate to grant leave to discontinue the proceeding without giving notice to group members. His Honour explained (at [35]) that:

…Unless group members are given notice of the proposed discontinuance and the terms upon which that is proposed to occur, they may not know: (a) that their claims are no longer being pursued in the proceeding and that they may lose their rights to bring their own claim by operation of the applicable limitation period; (b) that the proposed discontinuance is on terms that they remain able to bring any individual claim connected to their employment with TESA; (c) the reasons for the proposed discontinuance and therefore whether they should object to it; and (d) that they may seek to be substituted as the representative party on the basis that the applicant is no longer adequately representing his or her interests (s 33T).

11    Having regard to the authorities referred to in the preceding paragraph, considerations that are relevant to the question whether the Court should require that notice of an application for approval of the discontinuance of a representative proceeding be given to group members and, if so, the manner in which that should be done, include:

(a)    the stage that the proceeding has reached;

(b)    the reasons for the discontinuance;

(c)    whether group members are likely to lose the right to bring their own claim by virtue of the discontinuance or the operation of any limitation period, or would be adversely affected in any other way by the discontinuance;

(d)    the extent to which group members are likely to be aware of the proceeding and/or have an active interest in the proceeding; and

(e)    the available means of giving notice to group members and the likelihood that notice will come to the attention of group members with an active interest in the proceeding.

Should notice by given under s 33X?

12    In the present case, the applicants sought leave to issue a notice:

(a)    to each group member who has registered their interest in the proceeding with Shine Lawyers at the email or postal address for that group members; and

(b)    by publication on the website page for the proceeding on Shine Lawyers’ website.

13    The applicants and the first and third respondents submitted, and I accept, that the above methods of giving notice to group members are appropriate having regard to the following considerations.

14    First, the proceeding is at a very early stage. Opt out notices have not yet been issued. While pleadings have closed, applications have been made to strike out the pleadings and/or summarily dismiss the proceeding.

15    Second, the proceeding is being discontinued because the litigation funder has withdrawn funding for the proceeding. The decision made by the funder has followed the early discovery to the applicants of documents in the possession of the respondents. The proceeding was commenced on the foundation of publicly available material but where significant information was not available to the applicants and their representatives at the time of commencement. The litigation funder has re-assessed the proceeding in light of the discovery given.

16    Third, and as noted earlier, neither the discontinuance of the proceeding nor the terms of the Discontinuance Deed will affect the rights of the applicants or group members to bring another proceeding making the same or similar claims. The running of time against group members in respect of the claims in the proceeding has been suspended since the commencement of the proceeding and, by orders sought on the application, will not begin to run again until 60 days after the approval of the discontinuance.

17    Fourth, the value of the individual claims of group members, taking into account the allegations and the time periods, is likely to be quite modest, making it unlikely that anyone would pursue a claim on similar lines to the pleaded allegations.

18    Fifth, group membership is likely to be in the hundreds of thousands of individuals, meaning the process associated with identifying and notifying all group members would be both time-consuming and costly.

19    Sixth, no potential group member list has been compiled to date. The evidence indicates that the necessary data retrieval steps that would be required to identify potential group members of the products the subject of the proceeding would be onerous, time-consuming and expensive.

20    Seventh, Shine Lawyers’ marketing exercises using social media platforms and paid marketing services to generate interest in the proceeding has resulted in 3,007 registered individuals who have registered their interest in this proceeding with Shine Lawyers.

21    Having regard to the fact that the principal purpose of notices under ss 33X is to ensure that group members can make informed decisions concerning their rights or interests, I consider it appropriate that those group members who have registered an interest in the proceeding be given notice of the proposed discontinuance. Such notice will ensure that those group members, who have taken an active interest in the proceeding, are informed and provided with an opportunity to be heard on the application. With respect to the broader body of potential group members, I consider it sufficient for notice of the proposed discontinuance to be published on Shine Lawyers’ website.

22    The applicants acknowledged that, while the Court will be asked to approve the discontinuance of the proceeding, a question may arise whether the discontinuance pursuant to the terms of the Discontinuance Deed might be characterised as a settlement. Although the Discontinuance Deed does not include any release or other extinguishment of the claims of group members against the respondents, it does have features of a settlement in that the respondents have agreed to pay an amount towards the applicants' costs of bringing the proceeding. I accept the applicants’ submissions, however, that the Discontinuance Deed does not involve a “compromise” of the proceeding in the true sense for the reason that the rights of group members to pursue a claim against the respondents are not affected by the Deed. Nevertheless, out of an abundance of caution, I will make the order sought by the applicants dispensing with the requirements of s 33X(4) of the Act (which apply to applications for the approval of a settlement).

Interim confidentiality orders

23    The applicants also sought, pursuant to s 37AF(1) of the Act, an interim confidentiality order over material identified by the applicants to be confidential or privileged in the affidavit of Craig Richard Allsopp affirmed 26 September 2024 and its annexures, and in the applicants’ submissions in support of the application for approval of the discontinuance, pending determination of the confidentiality of that material at the hearing of the application for approval.

24    The applicants sought suppression of this material on the basis that it constitutes:

(a)    confidential information containing commercially sensitive terms upon which Shine Lawyers and/or Woodsford conducts business or commercially sensitive information;

(b)    confidential information containing commercially sensitive information related to the respondents’ business model; or

(c)    information that is subject to legal professional privilege.

25    Mr Allsopp’s affidavit sets out the basis upon which the confidentiality orders are sought.

26    I consider it appropriate to make an interim confidentiality order in the form sought by the applicants, that the material described above be suppressed on an interim basis pending final determination of the confidentiality of that material by the Court. The interim order preserves the status quo pending a final assessment of the confidentiality application. On that basis, I consider that the order is necessary to prevent prejudice to the proper administration of justice.

Associate:

Dated:    11 October 2024