Bradshaw v BSA Limited (No 2)

• Jurisdiction: Australia Federal only
• Judgment Date: 30 November 2022
• Neutral Citation: [2022] FCA 1440
• Date: 30 November 2022
• Court: Federal Court

Federal Court of Australia

Bradshaw v BSA Limited (No 2) [2022] FCA 1440

File numbers:	VID 488 of 2020
Judgment of:	BROMBERG J
Date of judgment:	30 November 2022
Catchwords:	REPRESENTATIVE PROCEEDINGS – application for approval of settlement of representative proceeding – s 33V of Federal Court of Australia Act 1976 (Cth) – principles relevant to settlement approval – whether proposed settlement fair and reasonable – whether common fund order should be made and in what terms – relevant principles – whether certain deductions from settlement sums should be allowed – whether sum proposed as funder’s commission is appropriate – consideration as to the appropriate rate of commission in a proceeding instituted in the “no‑costs” jurisdiction of the Fair Work Act 2009 (Cth) – whether costs incurred by a funder for adverse costs insurance should be allowed – whether pre-retainer legal costs should be allowed in full – whether deduction sought for legal costs including uplift appropriate – whether non‑publication orders should be made – settlement approved on basis that the distribution of the settlement sum proposed be adjusted to reflect a reduction of the funder’s commission, the disallowance of adverse costs insurance and the disallowance in part of pre-retainer legal costs.
Legislation:	Fair Work Act 2009 (Cth) Federal Court of Australia Act 1976 (Cth) Independent Contractors Act 2006 (Cth) Legal Profession Uniform Law Application Act 2014 (Vic)
Cases cited:	Asirifi-Otchere v Swann Insurance (Aust) Pty Ltd (No 3) (2020) 385 ALR 625; [2020] FCA 1885 Augusta Ventures Limited v Mt Arthur Coal Pty Limited (2020) 283 FCR 123 Australian Education Union v State of Victoria (Department of Education and Early Childhood Development) (2015) 239 FCR 461 Australian Securities and Investments Commission v Richards [2013] FCAFC 89 Blairgowrie Trading Ltd v Allco Finance Group Ltd (Recs and Mgrs Apptd) (In Liq) (No 3) (2017) 343 ALR 476; [2017] FCA 330 BMW Australia Ltd v Brewster (2019) 269 CLR 574 Botsman v Bolitho (2018) 57 VR 68 Bradshaw v BSA Limited (2021) 394 ALR 76; [2021] FCA 1080 BSA Limited v Bradshaw, in the matter of BSA Limited (No 2) [2022] FCA 1182 BSA Limited v Bradshaw, in the matter of BSA Limited [2022] FCA 747 C7A/2017 v Minister for Immigration and Border Protection (No 2) [2020] FCAFC 70 Caason Investments v Cao (No 2) [2018] FCA 527 Clime Capital Ltd v UGL Pty Ltd [2020] FCA 66 Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 398 ALR 404; [2022] HCA 1 Court v Spotless Group Holdings Ltd [2020] FCA 1730 Davaria Pty Ltd v 7 Eleven Stores Pty Ltd (2020) 281 FCR 501 Duck v Airservices Australia (No 3) [2021] FCA 304 Endeavour River Pty Ltd v MG Responsible Entity Ltd [2019] FCA 1719 Evans v Davantage Group Pty Ltd (No 3) [2021] FCA 70 Fair Work Ombudsman v Woolworths Group Limited (Case Management) [2022] FCA 376 Kelly v Willmott Forests Ltd (in liquidation) (No 4) (2016) 335 ALR 439; [2016] FCA 323 Klemweb Nominees Pty Ltd (as trustee for the Klemweb Superannuation Fund) v BHP Group Ltd (2019) 369 ALR 583; [2019] FCAFC 107 Kuterba v Sirtex Medical Limited (No 3) [2019] FCA 1374 Lenehan v Powercor [2020] VSC 82 Liverpool City Council v McGraw-Hill Financial, Inc (now known as S&P Global Inc) [2018] FCA 1289 Mann v Carnell (1999) 201 CLR 1 McKay Super Solutions Pty Ltd (Trustee) v Bellamy’s Australia Ltd (No 3) [2020] FCA 461 Modtech Engineering Pty Limited v GPT Management Holdings Limited (No 2) [2013] FCA 1163 Money Max Int Pty Ltd v QBE Insurance Group Ltd (2016) 245 FCR 191 Motorola Solutions, Inc v Hytera Communications Corporation Ltd (No 2) [2018] FCA 17 Mutch v ISG Management Pty Ltd (No 2) [2020] FCA 954 Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission (Pseudonym) [2022] FCAFC 160 Petersen Superannuation Fund Pty Ltd v Bank of Queensland Limited (No 3) [2018] FCA 1842 Prygodicz v Commonwealth of Australia (No 2) [2021] FCA 634 Stanford v DePuy International Ltd (No 6) [2016] FCA 1452 Steelforce Trading Pty Ltd v Parliamentary Secretary to the Minister for Industry, Innovation and Science (No 2) [2018] FCAFC 47 Thomas v Romeo Lockleys Asset Partnership [2022] FCA 1106 Turner v Tesa Mining (NSW) Pty Limited [2019] FCA 1644 Uren v RMBL Investments Ltd (No 2) [2020] FCA 647 Webster (Trustee) v Murray Goulburn Co-Operative Co Limited (No 4) [2020] FCA 1053 Williams v Ausnet Electricity Services Pty Ltd [2017] VSC 474 Williams v FAI Home Security Pty Ltd (No 4) (2000) 180 ALR 459; [2000] FCA 1925 WorkPac Pty Ltd v Rossato (2021) 271 CLR 456
Division:	Fair Work Division
Registry:	Victoria
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	259
Date of hearing:	8 July 2022
Counsel for the Applicants/First Cross- Respondent:	Mr I Pike SC with Mr J Dooley
Solicitor for the Applicants/First Cross- Respondent:	Shine Lawyers
Counsel for the Respondent/ Cross-Claimant:	Mr R Craig KC with Mr D Habashy
Solicitor for the Respondent/ Cross-Claimant:	Johnson Winter & Slattery
Counsel for Marcomm Communications the Third Cross-Respondent (Second Cross-Claim)	Mr M Kennedy
Solicitor for Marcomm Communications the Third Cross-Respondent (Second Cross-Claim)	Mackay Lawyers & Advisors
Counsel for LLS Fund Services (Intervener)	Mr W A D Edwards with Mr M Guo
Solicitor for LLS Fund Services (Intervener)	William Roberts Lawyers

ORDERS

		VID 488 of 2020
BETWEEN:	PAUL BRADSHAW First Applicant ; ...