Kelly v Willmott Forests Ltd (in liquidation) (No 4) [2016] FCA 323

FEDERAL COURT OF AUSTRALIA

Kelly v Willmott Forests Ltd (in liquidation) (No 4) [2016] FCA 323 File numbers: VID 1485 of 2011 VID 1483 of 2011 VID 1484 of 2011 VID 187 of 2013

Judge: MURPHY J

Date of judgment: 5 April 2016

Catchwords: REPRESENTATIVE PROCEEDING – settlement agreement – application for court approval of settlement under s 33V of the Federal Court of Australia Act 1976 (Cth) – principles relevant to settlement approval – relevance of low level of objections to settlement approval – settlement term which operates to preclude class members from denying the enforceability of their loan agreements on any basis – whether opt out notice unambiguously informed class members that if they did not opt out they would in subsequent loan enforcement proceedings be precluded from advancing claims or defences on any basis – opt out notice failed to unambiguously inform class members of the asserted preclusion – whether upon judgment in the class action, in subsequent proceedings class members would be precluded by the principles of Anshun estoppel or abuse of process – whether class members could have or were required to raise their individual or unique claims within the class action – whether it was unreasonable for class members not to have raised their individual or unique claims within the class action – class members unlikely to be precluded in subsequent proceedings by Anshun estoppel or abuse of process – effect of difficulties in funding the litigation and the resultant significant gaps in case preparation – whether the applicants' lawyers were obliged to inform class members of the difficulties in funding the litigation and the resultant significant gaps in case preparation - whether the applicants' lawyers were in a position to properly inform the Court as to the prospects of success – whether several conflicts of interest were recognised and properly dealt with by the applicants' lawyers – whether in the circumstances the applicants' lawyers were required to satisfy the Court as to the reasonableness of costs charged to class members – settlement approval refused