Thomas v Romeo Lockleys Asset Partnership (No 3)

• Jurisdiction: Australia Federal only
• Judgment Date: 15 November 2022
• Neutral Citation: [2022] FCA 1455
• Date: 15 November 2022
• Court: Federal Court

Federal Court of Australia

Thomas v Romeo Lockleys Asset Partnership (No 3) [2022] FCA 1455

File numbers:	SAD 105 of 2020 SAD 169 of 2020
Judgment of:	CHARLESWORTH J
Date of judgment:	15 November 2022
Date of publication of reasons:	1 December 2022
Catchwords:	REPRESENTATIVE PROCEEDINGS – Administrator of distribution scheme appointed by the Court – Administrator granted liberty to apply – Administrator seeking orders premised on an allegation that the respondents are in breach of approved settlement agreement – allegation of breach not established – Administrator asking the Court to substitute the timeframe for payments to Group Members – whether it is just to make orders setting timeframes different to those agreed between the parties – role of Administrator is to administer the Deed in accordance with its terms, not to agitate for more beneficial terms for Group Members
Legislation:	Federal Court of Australia Act 1976 (Cth) s 33V
Cases cited:	Thomas v Romeo Lockleys Asset Partnership [2022] FCA 1106 Thomas v Romeo Lockleys Asset Partnership (No 2) [2022] FCA 1276
Division:	Fair Work Division
Registry:	South Australia
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	70
Date of hearing:	15 November 2022
SAD 105 of 2020
Counsel for the Applicant:	Mr R Markham
Solicitor for the Applicant:	Adero Law
Counsel for the Respondents:	Mr T Duggan KC
Solicitor for the Respondents:	Crawford Legal
Counsel for Adero Law:	The non-party Adero Law appeared by its representative Mr R Markham
SAD 169 of 2020
Counsel for the Applicant:	Mr R Markham
Solicitor for the Applicant:	Adero Law
Counsel for the Respondents:	Mr T Duggan KC
Solicitor for the Respondents:	Crawford Legal
Counsel for Adero Law:	The non-party Adero Law appeared by its representative Mr R Markham

ORDERS

		SAD 105 of 2020
BETWEEN:	CHRISTOPHER PETER THOMAS Applicant
AND:	ROMEO LOCKLEYS ASSET PARTNERSHIP, BEING THE PARTNERSHIP OPERATED BY LOCKLEYS FOODLAND PTY LTD AND ROMEO LOCKLEYS HOLDINGS PTY LTD (ABN 12 244 067 815) First Respondent ; LOCKLEYS FOODLAND PTY LTD (ACN 108 166 276) Second Respondent ; ROMEO LOCKLEYS HOLDINGS PTY LTD (ACN 108 157 928) Third Respondent

		SAD 169 of 2020
BETWEEN:	MARTIN SHINA Applicant
AND:	“ROMEO NSW PARTNERSHIP” BEING THE PARTNERSHIP OPERATED BY ROMEO NSW INVESTMENTS PTY LTD AND THE TRUSTEE FOR ROMEO NSW HOLDING TRUST (ABN 11 807 080 683) First Respondent ; ROMEO NSW INVESTMENTS PTY LTD (ACN 156 756 544) Second Respondent ; ROMEO NSW HOLDINGS PTY LTD (ACN 156 757 809) Third Respondent

order made by:	CHARLESWORTH J
DATE OF ORDER:	15 NOVEMBER 2022

THE COURT ORDERS THAT:

1. The Administrator’s application for orders in terms of the short minutes of order

submitted to the Court on 4 November 2022 is dismissed.

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

REASONS FOR JUDGMENT

(Revised from the transcript)

CHARLESWORTH J

1. On 19 September 2022, the Court made orders pursuant to s 33V(1) of the Federal Court of Australia Act 1976 (Cth) approving the settlement of these two representative proceedings. The terms of the settlement are recorded in a Deed of Settlement and Release and a Settlement Scheme forming annexures RMM1-1 and RMM1-2 to the affidavit of Mr Rory Michael Markham sworn on 17 November 2021.

2. On 15 November 2022, the Court dismissed an application made by Adero Law in the exercise of the liberty to apply in the proceedings. A n order was subsequently entered as follows:

The Administrator’s application for orders in terms of the short minutes of order submitted to the Court on 4 November 2022 is dismissed.

3. Oral reasons for that order were given on the day of the hearing. The Court now publishes written reasons to the same effect.

4. The application for approval was commenced in this Court by way of interlocutory application filed not long after the Deed was executed. The approval hearing became fragmented and complicated because of issues concerning the questions of costs which need not be elaborated upon here. As a consequence, the Court did not approve the settlement for almost ten months.

5. The settlement was approved on 19 September 2022 by orders of this Court (Settlement Orders). Understandably, the beneficiaries of the Deed, that is, the Group Members (comprising former and current employees of the respondents) wish to receive their distribution of money in accordance with the Deed.

6. By paragraph 3 of the Settlement Orders, Adero Law (also the lawyers for the lead applicants) was appointed as the Settlement Administrator of Scheme. It was authorised to act in accordance with clause 3 of the Scheme, subject to any discretion of the Court. I will return to that clause later in these reasons.

7. By paragraph 4 of the Settlement Orders, I ordered that Adero Law, in its capacity as Administrator, had liberty to apply in relation to any matter arising under the Scheme.

8. In that capacity, Adero Law, by its principal Mr Rory Markham has exercised the liberty to apply and put before the Court proposed short minutes of order expressed as follows:

(1) On or before 23 December 2022, the Respondents shall pay all entitlements owing to eligible group members whose settlement statements and payment details have been provided to the Respondent by the Settlement Administrator on or before 4 November 2022.

(2) On or before 18 January 2023, the Respondents shall pay all entitlements owing to any other eligible group members whose settlement statements and payment details have been provided to the Respondent by the Settlement Administrator on or before 5 December 2022.

(3) On or before 23 January 2023, the Respondents shall provide the Settlement Administrator written notice that all payments have been made in accordance with Orders 1 and 2 of these orders.

9. The Administrator’s position is that the Court should make orders expediting timeframes that are otherwise provided for in the Scheme. That application is founded on a number of discrete bases including that it is reasonable and practical for the respondents to make such expedited payments.

10. Mr Markham’s submissions were also founded on allegations that it apprehends that the respondents will not act in accordance with the terms of the Deed. He submitted that the respondents are intending to make a “bubble payment” on the last day which he says would not be in accordance with the terms of the Scheme. Second and relatedly, Mr Markham submitted that the respondents are not acting in good faith, or are otherwise acting in bad faith in the performance of their obligations under the Deed and the Scheme.

11. The respondents deny any allegation of bad faith. They submit that the Administrator is attempting to have this Court rewrite the terms of the agreement struck between the parties as recorded in the Deed and the Scheme. They submit that the Court does not have the power to rewrite the agreement and even if there were such a power, it ought not be exercised as a matter of discretion.

12. The Scheme forms an annexure to the Deed and contains a...