Fisher (trustee for the Tramik Super Fund Trust) v Vocus Group Limited (No 2)

• Jurisdiction: Australia Federal only
• Judge: MOSHINSKY J
• Judgment Date: 04 May 2020
• Neutral Citation: [2020] FCA 579
• Date: 04 May 2020
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Fisher (trustee for the Tramik Super Fund Trust) v Vocus Group Limited (No 2) [2020] FCA 579

File number:	VID 419 of 2019
Judge:	MOSHINSKY J
Date of judgment:	4 May 2020
Catchwords:	REPRESENTATIVE PROCEEDINGS – application for approval of settlement pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth) – applicable principles – whether proposed settlement fair and reasonable – whether proposed treatment of unregistered group members fair and reasonable – whether proposed deductions, including a proposed deduction for funding commission, were fair and reasonable
Legislation:	Australian Securities and Investments Commission Act 2001 (Cth), s 12DA Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer Law, s 18 Corporations Act 2001 (Cth), ss 674, 1041H Federal Court of Australia Act 1976 (Cth), ss 22, 23, 33V, 33ZB, 33ZF Civil Procedure Act 2005 (NSW), s 183
Cases cited:	Australian Competition and Consumer Commission v Chats House Investments Pty Limited(1996) 71 FCR 250 Australian Securities and Investments Commission v Richards[2013] FCAFC 89 BMW Australia Ltd v Brewster (2019) 374 ALR 627; [2019] HCA 45 Camilleri v The Trust Company (Nominees) Limited [2015] FCA 1468 Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Ltd(No 2) (2006) 236 ALR 322 Haselhurst v Toyota Motor Corporation Australia Ltd [2020] NSWCA 66 Haslam v Money for Living (Aust) Pty Ltd (Administrators Appointed)[2007] FCA 897 Inabu Pty Ltd as trustee for the Alidas Superannuation Fund v CIMIC Group Ltd [2020] FCA 510 Lenthall v Westpac Banking Corporation (No 2)[2020] FCA 423 Matthews v Ausnet Electricity Services Pty Ltd [2014] VSC 663 McKay Super Solutions Pty Ltd (Trustee) v Bellamy’s Australia Ltd (No 3)[2020] FCA 461 Mercieca v SPI Electricity Pty Ltd [2012] VSC 204 Modtech Engineering Pty Limited v GPT Management Holdings Limited[2013] FCA 626 Newstart 123 Pty Ltd (ACN 001 833 129) v Billabong International Ltd (2016) 343 ALR 662 Pharm-a-Care Laboratories Pty Ltd v Commonwealth (No 6) [2011] FCA 277 Rod Investments (Vic) Pty Ltd v Abeyratne [2010] VSC 457 Taylor v Telstra Corporation Ltd[2007] FCA 2008 Wheelahan v City of Casey [2011] VSC 215 Williams v FAI Home Security Pty Ltd (No 4) (2000) 180 ALR 459 Wingecarribee Shire Council v Lehman Brothers Australia Ltd (in liq) (No 9)[2013] FCA 1350 Wong v Silkfield Pty Ltd[2000] FCA 1421
Date of hearing:	24 April 2020
Registry:	Victoria
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Corporations and Corporate Insolvency
Number of paragraphs:	78
Counsel for the Applicants:	Mr WAD Edwards with Mr DJ Fahey
Solicitor for the Applicants:	Slater and Gordon Lawyers
Counsel for the Respondent:	Mr MC Garner with Mr K Loxley
Solicitor for the Respondent:	Herbert Smith Freehills

ORDERS

		VID 419 of 2019
BETWEEN:	MICHAEL FISHER AND TRACY FISHER AS TRUSTEES FOR THE TRAMIK SUPER FUND TRUST Applicants
AND:	VOCUS GROUP LIMITED Respondent

JUDGE:	MOSHINSKY J
DATE OF ORDER:	4 MAY 2020

THE COURT ORDERS THAT:

Video link hearing

1. Pursuant to s 47B of the Federal Court of Australia Act 1976 (Cth) (the Act) the hearing of the applicants’ Interlocutory Application filed on 31 January 2020 be conducted by video link, and Counsel be permitted to make their appearances and submissions by video link.

2. Pursuant to s 47E of the Act, a person who is to give testimony by video link be permitted to swear an oath or make an affirmation by video link, with the oath or affirmation being administered by video link by a Court officer. If in the course of examination or cross-examination it is necessary to put a document to that witness, a copy of the physical document be earlier provided to that person and to the Court, or alternatively be transmitted during the hearing to that person and to the Court.

Confidentiality

3. Pursuant to ss 37AF and 37AG(1)(a) of the Act, until further order of the Court, in order to prevent prejudice to the proper administration of justice:

(a) the redacted parts of Confidential Exhibit MGC-1, and the whole of Confidential Exhibits MGC-4, MGC-11, MGC-13, MGC-14, MGC-15, MGC-16, MGC-20, MGC-21 and MGC-24 of the affidavit of Mathew Glen Chuk filed 2 April 2020 (Exhibit A1) (the First Chuk Affidavit); and

(b) the report of Catherine Mary Dealehr dated 1 April 2020,

be treated as confidential, not be published or made available and not be disclosed to any person or entity except to the docket Judge, his or her personal staff, any officer of the Court authorised by the docket Judge, the applicants, their legal representatives, Investor Claim Partner Pty Ltd (ICP), and Woodsford Litigation Funding Limited (Woodsford), and such permitted disclosures to be upon terms that none of those parties or persons disclose that material or any part thereof to any person or entity.

Approval of Settlement

4. Pursuant to s 33V of the Act, the settlement of the proceeding upon the terms set out in:

(a) the Deed of Settlement executed by the applicants, respondent, Slater and Gordon Limited, Woodsford, and ICP dated 21 December 2019 (being Exhibit MGC-5 to the First Chuk Affidavit); and

(b) the Settlement Distribution Scheme (and any annexures therein) filed by the applicants (being Exhibit MGC-10 and Confidential Exhibit MGC-11 to the First Chuk Affidavit) (the Settlement Distribution Scheme),

(together, the Settlement Documents) be approved.

5. Pursuant to s 33V of the Act, the Court authorises the applicants nunc pro tunc for and on behalf of the Group Members (as defined in [1] of the statement of claim) (who did not file an opt out notice) to enter into and give effect to the Settlement Documents and the transactions contemplated for and on behalf of the Group Members.

6. Pursuant to s 33ZB of the Act, the persons affected and bound by the settlement of the proceedings are the applicants, the respondent and the Group Members (who did not file an opt out notice).

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

Additional Registered Group Members

8. A Group Member will be treated as a Registered Group Member (as defined in the orders dated 7 February 2020), if that Group Member is listed in Annexure A to these orders, being persons who lodged a Notice of Objection on the basis that their claim be included in the Distribution under the Settlement Distribution Scheme, despite not previously registering their claim.

Applicants’ Legal Costs and Funding Order

9. Pursuant to ss 33V(2), 22 and/or 23 of the Act, for the purposes of the Settlement Distribution Scheme:

(a) the “Applicants’ Legal Costs” (including the “Remaining Costs”) be approved in the sum of $2,131,881.18 (including GST);

(b) the “Funding Commission” be approved in the sum of $3,897,735.37 (including applicable GST);

(c) “Funding Costs”, further to the portion of the Applicants’ Legal...