Thomas v Romeo Lockleys Asset Partnership

• Jurisdiction: Australia Federal only
• Judgment Date: 19 September 2022
• Neutral Citation: [2022] FCA 1106
• Date: 19 September 2022
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Thomas v Romeo Lockleys Asset Partnership [2022] FCA 1106

File numbers:	SAD 105 of 2020 SAD 169 of 2020
Judgment of:	CHARLESWORTH J
Date of judgment:	19 September 2022
Catchwords:	PRACTICE AND PROCEDURE – application for approval of the settlement of two representative proceedings under s 33V of the Federal Court of Australia Act 1976 (Cth) – where lead applicants allege that they did not receive their full entitlements under the General Retail Industry Award 2010 for the hours worked in contravention of the Fair Work Act 2009 (Cth) – whether the proposed settlement is fair and reasonable in the interests of group members and as between them – respondents agreeing to pay lead applicants’ costs – whether legal costs proposed to be charged by lead applicants’ lawyers are in excess of that which may be lawfully claimed – lawyers’ retainer void – lawyers failing to comply with the Legal Profession Act 2006 (ACT) – desirability of transparency and accountability in asserted claims for legal costs for class actions whether under a retainer or otherwise – relevance of the statutory context under the Fair Work Act 2009 (Cth) – discretion of the Court to fix a lower costs amount consistent with the settlement agreement reached between the parties – rejection of claimed costs amount – lower sum fixed – settlement approved
Legislation:	Fair Work Act 2009 (Cth) ss 12, 539, 540, 557C, 570 Federal Court of Australia Act 1976 (Cth) ss 33X, 33V, 33ZJ, 37AE, 37AG, 54A Judiciary Act 1903 (Cth) s 79 ; Legal Profession Act 2006 (ACT) ss 269, 271, 277, 279, 283, 284, 287, 293 ; Federal Court Rules 2011 (Cth) r 28.61
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 Bywater v Appco Group Australia Pty Ltd [2020] FCA 1877 Caason Investments Pty Limited v Cao (No 2) [2018] FCA 527 Camilleri v The Trust Company (Nominees) Limited [2015] FCA 1468 Duck v Airservices Australia (No 3) [2021] FCA 304; 304 IR 99 Earglow Pty Ltd v Newcrest Mining Limited [2016] FCA 1433 Evans v Davantage Group Pty Ltd (No 3) [2021] FCA 70 Fair Work Ombudsman v Woolworths Group Limited (Case Management) [2022] FCA 376 Gall v Domino’s Pizza Enterprises Ltd (No 2) [2021] FCA 345; 391 ALR 675 Kelly v Willmott Forests Ltd (in liq) (No 4) [2016] FCA 323; 335 ALR 439 Modtech Engineering Pty Limited v GPT Management Holdings Limited [2013] FCA 626 Mutch v ISG Management Pty Ltd [2020] FCA 362 Petersen Superannuation Fund Pty Ltd v Bank of Queensland Ltd (No 3) [2018] FCA 1842; 132 ACSR 258 Prygodicz v Commonwealth of Australia (No 2) (2021) 173 ALD 277 Sheehan v Thiess Pty Ltd [2019] FCA 1762 Stanford v DePuy International Ltd (No 6) [2016] FCA 1452 Turner v Tesa Mining (NSW) Pty Limited [2019] FCA 1644; 290 IR 388 Williams v FAI Home Security Pty Ltd (No 4) [2000] FCA 1925; 180 ALR 459
Division:	Fair Work Division
Registry:	South Australia
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	155
Date of last submission:	SAD 105 of 2020: Applicant: 14 June 2022 SAD 169 of 2020: Applicant: 14 June 2022
Date of hearing:	8, 30 March 2022 14 June 2022
SAD 105 of 2020
Counsel for the Applicant:	Mr M Whitbread
Solicitor for the Applicant:	Adero Law
Counsel for the Respondents:	Mr T Duggan KC with Mr T Besanko
Solicitor for the Respondents:	Crawford Legal
SAD 169 of 2020
Counsel for the Applicant:	Mr M Whitbread
Solicitor for the Applicant:	Adero Law
Counsel for the Respondents:	Mr T Duggan KC with Mr T Besanko
Solicitor for the Respondents:	Crawford Legal

ORDERS

		SAD 105 of 2020
BETWEEN:	CHRISTOPHER PETER THOMAS Applicant
AND:	ROMEO LOCKLEYS ASSET PARTNERSHIP, BEING THE PARTNERSHIP OPERATED BY LOCKLEYS FOODLAND PTY LTD & 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

order made by:	CHARLESWORTH J
DATE OF ORDER:	19 sEPTEMBER 2022

THE COURT ORDERS THAT:

Approval of settlement

1. Subject to these orders, pursuant to s 33V(1) 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 17 November 2021 is approved.

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

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

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

Costs

5. For the purpose of the Deed of Settlement and Release, the Costs Amount is $560,893.52.

6. The applicant, the respondent and Adero Law (interested non-party) have liberty to apply to vary the amount fixed by paragraph 5, such liberty to be exercised on or before 11 October 2022.

7. In the event that a party or the interested non-party exercises the liberty in paragraph 6, the question be referred to a Registrar for inquiry and report pursuant to s 54A of the FCA Act and r 28.61 and r 28.66 of the Federal Court Rules 2011 (Cth), on terms of reference and subject to conditions to be fixed by the Court.

8. In the event that the liberty in paragraph 6 is exercised by the interested non-party, the interested non-party is to bear its own costs of the application, including the costs of participating in the inquiry.

9. All outstanding costs orders otherwise be vacated.

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