Clark v National Australia Bank Limited (No 2)

• Jurisdiction: Australia Federal only
• Judge: LEE J
• Judgment Date: 08 May 2020
• Neutral Citation: [2020] FCA 652
• Date: 08 May 2020
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Clark v National Australia Bank Limited (No 2) [2020] FCA 652

File number:	VID 1238 of 2018
Judge:	LEE J
Date of judgment:	8 May 2020
Catchwords:	REPRESENTATIVE PROCEEDINGS – where order sought pursuant to ss 22, 23 or s 33ZF of the Federal Court of Australia Act 1976 (Cth), r 1.32 of the Federal Court Rules 2011 (Cth) and/or the Court’s implied jurisdiction dismissing the proceeding – consideration as to how s 33ZB operates to bind group members to a settlement not the dismissal of the class action ; REPRESENTATIVE PROCEEDINGS – application for approval of settlement pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth) – settlement approved ; PRACTICE AND PROCEDURE – where applicant sought confidentiality orders pursuant to Pt VAA of the Federal Court of Australia Act 1976 (Cth) in respect of extensive material put before the Court on the settlement application – consideration of threshold for the grant of such an order – consideration of principles of open justice as fundamental to the operation of the judicial power of the Commonwealth
Legislation:	Federal Court of Australia Act 1976 (Cth) ss 22, 23, Pt IVA, ss 33V, 33ZB, 33ZF, Pt VAA Federal Court Rules 2011 (Cth) r 1.32
Cases cited:	Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 Lifeplan Australia Friendly Society Limited v S&P Global Inc (Formerly McGraw-Hill Financial, Inc) (A Company Incorporated in New York) [2018] FCA 379 Stanford v DePuy International Ltd (No. 6) [2016] FCA 1452
Date of hearing:	8 May 2020
Registry:	New South Wales
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Corporations and Corporate Insolvency
Category:	Catchwords
Number of paragraphs:	35
Counsel for the Applicant:	Dr O Bigos SC with Ms G Coleman
Solicitor for the Applicant:	Slater and Gordon Lawyers
Counsel for the First Respondent:	Mr D Thomas SC with Mr P Holmes
Solicitor for the First Respondent:	King & Wood Mallesons
Counsel for the Second Respondent:	Mr C Caleo QC with Ms G Crafti
Solicitor for the Second Respondent:	Clyde & Co

ORDERS

		VID 1238 of 2018
BETWEEN:	SAMANTHA CLARK Applicant
AND:	NATIONAL AUSTRALIA BANK LIMITED First Respondent ; MLC LIMITED (ACN 000 000 402) Second Respondent

JUDGE:	LEE J
DATE OF ORDER:	8 MAY 2020

THE COURT ORDERS THAT:

Approval of Settlement

1. Pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth) (Act), settlement of the proceeding upon the terms set out in the Settlement Deed executed by the applicant, the respondents and Slater and Gordon dated 14 November 2019 (Settlement Deed) and the Settlement Distribution Scheme (and any annexures therein) filed by the applicant on 1 May 2020 (together, Settlement Documents), be approved.

2. Pursuant to s 33ZB of the Act, the persons affected and bound by the settlement of the proceedings be the applicant, the respondents and group members.

3. Pursuant to s 33ZF of the Act, Slater and Gordon be appointed Administrator of the Settlement Distribution Scheme and is to act in accordance with the rules of the Settlement Distribution Scheme.

Registrations occurring on or after 28 April 2020

4. Despite cl 5.1 of the Settlement Distribution Scheme, the group members identified by the Class Action IDs:

   1. set out in Annexure A to these orders be registered by the Administrator and be treated as Registered Group Members for the purposes of the Settlement Distribution Scheme; and

   2. NAB-CCI-792G-Y500-N5UC; NAB-CCI-598X-O497-U7KS, be permitted to register for the purposes of the Settlement Distribution Scheme.

Applicant’s Costs and Expenses

5. Pursuant to ss 33ZF and 33V of the Act, the following distributions from monies paid under the settlement be approved:

   1. the amount of $3,441,927.11 for the applicant’s legal costs and disbursements to 30 April 2020, on a solicitor and own client basis, incurred in connection with the proceeding including subsequent to the date of the Settlement Documents;

   2. the amount of $350,000.00 for the future costs of the Administrator from 1 May 2020;

   3. the amount of $20,000 for the applicant’s reasonable claim for compensation for the time and/or expenses incurred in the interests of prosecuting the proceeding on behalf of group members as a whole;

   4. the amounts of $3,000 for each of Barry Winyard, Paola Balla, Tony Galway, Teanna Martin, Nelson Dablorme, Elizabeth Hughes, Nathan Jack and Craig Sawyer, as a reasonable claim for compensation for the time and/or expenses incurred in connection with their role as sample group members in the proceeding.

Dismissal

6. Pursuant to ss 22, 23 or 33ZF of the Act or FCR 1.32 and/or the Court’s implied jurisdiction, the proceeding is dismissed with no order as to costs and with all previous cost orders vacated, with effect from the date on which the final distribution of the Settlement Sum (including the Residual Distribution Sum) occurs under the Settlement Distribution Scheme, on the basis that the dismissal is a defence and absolute bar to any claim or proceeding by the applicant or any group member with respect to this proceeding.

Confidentiality

7. Pursuant to ss 37AF and 37AG of the Act, to prevent prejudice to the proper administration of justice, the following documents, or parts of documents, remain confidential until further order:

   1. Annexure AP-81 to the affidavit of Andrew Paull affirmed on 10 February 2020;

   2. The following paragraphs of the affidavit of Andrew Paull affirmed on 1 May 2020 (exhibit “AP-C”): 9 (last sentence only); 10 (first sentence only); 11–13; 17; 24(c); 44(c); 44(e)–(f); 46 (from the comma in the first sentence until full stop on line four only); 47 (percentage figures only); 48–59; 61 (percentage figures only);

   3. Annexures AP-94, AP-97, AP-98, AP-99, AP-100 to the affidavit of Andrew Paull affirmed on 1 May 2020 (exhibit “AP-C”); and

   4. Annexure AP-104 and the fourth, sixth and seventh column to AP-108 to the affidavit of Andrew Paull affirmed on 7 May 2020 (exhibit “AP-B”).

Schedule

No. VID 1238 of 2018

Federal Court of Australia

District Registry: Victoria

Division: General

Second Respondent MLC LIMITED (ACN 000 000 402)

Annexure A – List of Group Members who registered on 28 April 2020

NAB-CCI-740J-D498-N5EN

NAB-CCI-637Q-R499-Q9LR

NAB-CCI-718X-O497-L8OT

NAB-CCI-547I-K494-Z4DK

NAB-CCI-624V-O499-W8TF

NAB-CCI-582N-F502-W8EG

NAB-CCI-537R-E496-X3MX

NAB-CCI-706T-T501-Y4WL

NAB-CCI-645R-D498-C6VL

NAB-CCI-596S-F493-B9SS

NAB-CCI-593X-P496-I6KB

NAB-CCI-664M-B493-N3WF

NAB-CCI-788U-G494-E8FN

NAB-CCI-738T-D497-N6EZ

NAB-CCI-806J-F502-K9YT

NAB-CCI-566Q-O501-Q6KJ

NAB-CCI-597H-L498-Y4XL

NAB-CCI-561H-G493-E4MS

NAB-CCI-545P-U498-D7VL

NAB-CCI-577D-G500-D7HV

NAB-CCI-735W-D496-F4QS

NAB-CCI-551P-F496-G3YU

NAB-CCI-735W-R501-L7WR

NAB-CCI-610V-K502-S4OB

NAB-CCI-695N-Q498-L4MS

NAB-CCI-537G-C500-L3YX

NAB-CCI-566K-L499-Y6KG

NAB-CCI-573M-L496-B6JF

NAB-CCI-784C-X501-S5RZ

NAB-CCI-773X-V503-M6PU

NAB-CCI-714S-R501-C7LB

NAB-CCI-574O-S499-G4VR

NAB-CCI-740P-O495-E6QT

NAB-CCI-599T-N500-H3PH

NAB-CCI-773V-F501-A4QH

NAB-CCI-746W-J500-C9DZ

NAB-CCI-808Y-T493-C8QG

NAB-CCI-564I-G494-N4SB

NAB-CCI-798S-I494-Y5FT

NAB-CCI-641J-U499-G6QR

NAB-CCI-704B-C498-K6BU

NAB-CCI-756D-X500-S5LB

NAB-CCI-807C-C500-I8BJ

NAB-CCI-662R-N499-W4TC

NAB-CCI-768W-L499-P8MH

NAB-CCI-560X-T494-K4DM

NAB-CCI-633V-G494-V8GZ

NAB-CCI-764B-F493-T3PC

...