Schoneweiss v The Fourth Force Pty Ltd

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 06 October 2022
• Neutral Citation: [2022] FCA 1236
• Date: 06 October 2022

Federal Court of Australia

Schoneweiss v The Fourth Force Pty Ltd [2022] FCA 1236

File number:	SAD 156 of 2020
Judgment of:	CHARLESWORTH J
Date of judgment:	6 October 2022
Date of publication of reasons:	18 October 2022
Catchwords:	PRACTICE AND PROCEDURE– application for approval of settlement of a representative proceeding under s 33V of the Federal Court of Australia Act 1976 (Cth) – where applicant and Group Members allege contraventions of the Fair Work Act 2009 (Cth) – whether proposed settlement is fair and reasonable in the interests of Group Members to be bound to it – settlement having effect of Group Members sharing the liability to pay the lead applicant’s costs – whether legal costs proposed to be charged by lead applicant’s solicitors are reasonable – whether enduring suppression orders should be made over material relevant to proposed settlement – proposed settlement approved – assessment of costs deferred
Legislation:	Federal Court of Australia Act 1976 (Cth) s 33V Fair Work Act 2009 (Cth) s 570 Legal Profession Act 2006 (ACT)
Cases cited:	Australian Securities and Investments Commission v Richards [2013] FCAFC 89 Baker v Woolworths Group Limited (No 2) [2022] FCA 534 Blairgowrie Trading Ltd v Allco Finance Group Ltd (recs & mgrs apptd) (in liq) (No 3) [2017] FCA 330; 343 ALR 476 Caason Investments Pty Limited v Cao (No 2) [2018] FCA 527 Evans v Davantage Group Pty Ltd (No 3) [2021] FCA 70 Kelly v Willmott Forests Ltd (in liq) (No 4) [2016] FCA 323; 335 ALR 439 Prygodicz v Commonwealth of Australia (No 2) (2021) 173 ALD 277 Thomas v Romeo Lockleys Asset Partnership [2022] FCA 1106
Division:	Fair Work Division
Registry:	South Australia
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	20
Date of hearing:	14 June 2022
Counsel for the Applicant:	Mr M Whitbread
Solicitor for the Applicant:	Adero Law
Counsel for the Respondents:	Ms K Eaton
Solicitor for the Respondents:	Lynch Meyer

ORDERS

		SAD 156 of 2020
BETWEEN:	CRAIG SCHONEWEISS Applicant
AND:	THE FOURTH FORCE PTY LTD (ACN 084 438 773) First Respondent ; DRAMET PTY LTD (ACN 109 544 425) Second Respondent

order made by:	CHARLESWORTH J
DATE OF ORDER:	6 OCTOBER 2022

THE COURT ORDERS THAT:

Approval of Settlement

1. Subject to these orders, pursuant to s 33V and s 33ZF of the Federal Court of Australia Act 1976 (Cth) (FCA Act), the settlement recorded in the Deed of Settlement and Release and the Settlement Distribution Scheme forming annexures RMM1-1 and RMM1-2 to the affidavit of Mr Rory Michael Markham sworn on 8 March 2022 is approved.

2. Sub-clause 1.30.1 of the Deed is approved on the condition that the words “paragraph 5(b) of the Further Amended Statement of Claim filed in SAD 105/2020 proceedings on 26 October 2020” be substituted with the words “paragraph 5(b) of the Statement of Claim filed in SAD 156/2020 proceedings on 26 October 2020”.

3. Pursuant to s 33V and s 33ZF(1) of the FCA Act the Court authorises the applicant, nunc pro tunc, to enter into and give effect to the Deed for and on behalf of all class members who did not file an opt out notice in accordance with s 33J of the FCA Act.

4. Pursuant to s 33ZB(a) of the FCA Act, the persons affected and bound by these orders are the applicant and all group members (whether registered or not) who have not opted out of the proceedings.

5. Pursuant to s 33ZF of the FCA Act, Adero Law be appointed as the Settlement Administrator of the Settlement Distribution Scheme and authorised to act in accordance with clause 3 of the Settlement Distribution Scheme, subject to any direction of the Court.

6. Adero Law as Settlement Administrator under the Settlement Distribution Scheme has liberty to apply in relation to any matter arising under the Settlement Distribution Scheme.

Costs

7. For the purposes of the Deed, the Administration Costs are fixed in the sum of $95,634.00 including GST.

8. For the purposes of sub-clause 1.10 of the Deed the amount of the “Assessed Adero Costs”:

1. is to be determined in such a manner as the Court thinks fit, such determination to be made on or before 29 November 2022; and

2. is not to exceed, in any event, the sum of $537,132.86 including GST.

9. The parties and Adero Law as an interested non-party have liberty to apply to vary the date in paragraph 8(a).

10. On or before 13 October 2022, the applicant’s solicitor (Adero Law) in its capacity as an interested non-party is to file and serve an affidavit deposing to the existence of any collateral agreement or arrangement affecting the operation or meaning of clause 7 of the costs agreement forming annexure RMM-3 to the affidavit of Mr Markham sworn on 31 May 2022.

11. On or before 13 October 2022, Adero Law is to:

1. undertake a review of the time keeping records referred to in the reports of Ms Catherine Dealehr dated 30 May 2022 (First Dealehr Report) and 9 June 2022 (Second Dealehr Report), so as to ensure that they contain (and only contain) work that Adero Law asserts is properly chargeable to the applicant, and time entries Adero Law asserts are reasonably necessary for the performance of itemised activities; and

2. file and serve on the applicant an affidavit:

1. disclosing the outcome of its review and annexing (in electronic form as appropriate) the revised time records;

2. providing a description of the tasks undertaken prior to the entry into the costs agreement and an explanation as to why they are said to be chargeable to the applicant;

3. discretely identifying the fees and disbursements said to be chargeable to the applicant for obtaining the opinion of any cost consultant;

4. providing a detailed description of the work undertaken in the preparation of pleadings, including the provision of work product justifying the professional fees and disbursements claimed against the applicant, and explaining those charges in light of the hours referred to in Table 11 and Table 21 of the First Dealehr Report; and

5. disclosing the extent to which any drafting, analysis, case theory preparation, modelling or other work product is a duplication of work produced in relation to any other litigation and explaining why duplicated work (if any) is claimed against the applicant.

12. All outstanding costs orders otherwise be vacated.

Confidentiality

13. For the purposes of sub-clause 15.1 of the Deed:

1. the sub-clause is approved only to the extent that it refers to the Calculation Principles and the Model, assumptions and calculations set out within the Model as defined in the Deed;

2. clause 15 is not otherwise approved.

14. Nothing in paragraph 13 excuses non-compliance by any person with the order in paragraph 15.

15. Pursuant to s 37AF and s 37AG(1)(a) of the FCA Act, in order to prevent prejudice to the proper administration of justice, the following documentary material (suppressed material) is to remain confidential and its publication is prohibited:

1. the opinion of Mr Michael Whitbread of Counsel, forming annexure RMM–5 to the affidavit of Mr Markham sworn on 31 May 2022;

2. sub-clause 5.2...