Fowler v Airservices Australia [2009] FCA 1189

FEDERAL COURT OF AUSTRALIA

Fowler v Airservices Australia [2009] FCA 1189

PRACTICE AND PROCEDURE – Court approval of representative proceeding – group members tightly confined and have provided continuing instructions to applicant's solicitors – all group members have approved proposed settlement – global settlement sum and settlement distribution method specified – counsel and solicitors recommend settlement - whether any further notice required pursuant to s 33X(4) of the Federal Court Act - whether settlement is fair and reasonable – whether global settlement sum should be kept confidential Federal Court Act 1976 (Cth) ss 33V, 33X Australian Competition and Consumer Commission v Chats House Investments Pty Limited (1996) 71 FCR 250 cited Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Ltd (No 2) (2006) 236 ALR 322 applied Haslam v Money For Living (Aust) Pty Limited (Administrators Appointed) [2007] FCA 897 cited Lopez v Star World Enterprises Pty Limited (1999) ATPR 41-678 cited Multiplex Funds Management v P Dawson Nominees (2007) 164 FCR 275 cited Taylor v Telstra Corporation Ltd [2007] FCA 2008 cited Williams v FAI Homes Security Pty Ltd (No 4) (2000) 180 ALR 459 considered MERVYN FOWLER v AIRSERVICES AUSTRALIA

ACD 48 of 2007

BENNETT J

19 OCTOBER 2009

CANBERRA (HEARD IN SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY ACD 48 of 2007

DISTRICT REGISTRY

general division

BETWEEN: MERVYN FOWLER

Applicant

AND: AIRSERVICES AUSTRALIA

Respondent

JUDGE: BENNETT J

DATE OF ORDER: 19 OCTOBER 2009

WHERE MADE: CANBERRA (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1. The settlement as detailed in the Deed of Release and Confidentiality exhibited to the affidavit of Heather Maree Wilson sworn on 16 September 2009 and marked "HMW-E4" be approved pursuant to s 33V(1) of the Federal Court of Australia Act 1976 (Cth) (the 'Settlement'). 2. The method of proposed distribution of the monies to be paid under the Settlement as set out in the spreadsheet exhibited to the affidavit of Heather Maree Wilson sworn on 16 September 2009 and marked "Amended HMW-E6" be approved pursuant to s 33V(2) of the Federal Court of Australia Act 1976 (Cth). 3. The documents exhibited to the affidavit of Heather Maree Wilson sworn on 16 September 2009 and marked "HMW-E1", "HMW-E2", "HMW-E5" and "HMW-E7" are confidential and are not required to be served on the Respondent and are to be kept on the Federal Court of Australia file in a sealed envelope marked "Not to be opened without leave of a Justice of the Federal Court of Australia" and that should any application be made to release these documents, notice of such application be first given to the Applicant's solicitors. 4. So much of the documents exhibited to the affidavit of Heather Maree Wilson sworn on 16 September 2009 and marked clause 2.1 of "HMW-E3", clause 2.1 of "HMW-E4", "HMW-E6" and "Amended HMW-E6"are confidential and are to be kept on the Federal Court of Australia file in a sealed envelope marked "Not to be opened without leave of a Justice of the Federal Court of Australia" and that should any application be made to release these document, notice of such application be first given to the Applicant's solicitors and to the Respondent's solicitors. 5. Paragraph 19 of the Outline of Submissions filed by the Respondent on 17 September 2009 be kept confidential.