Clasul Pty Ltd v Commonwealth of Australia [2016] FCA 1119

FEDERAL COURT OF AUSTRALIA

Clasul Pty Ltd v Commonwealth of Australia [2016] FCA 1119 File number: NSD 368 of 2013

Judge: FOSTER J

Date of Orders: 30 August 2016

Date of Publication of Reasons: 13 September 2016

Catchwords: PRACTICE AND PROCEDURE – whether, pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth), the Court should approve and give effect to the settlement of a class action – relevant principles discussed

Legislation: Federal Court of Australia Act 1976 (Cth), ss 37AF(1)(b), 33V, 33ZB and 33ZF

Cases cited: Camilleri v Trust Company (Nominees) Ltd [2015] FCA 1468

Date of hearing: 30 August 2016

Registry: New South Wales

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: Regulator and Consumer Protection

Category: Catchwords

Number of paragraphs: 54

Counsel for the Applicants: Mr MBJ Lee SC

Solicitor for the Applicants: Maurice Blackburn Lawyers

Counsel for the Respondent: Mr S Nixon

Solicitor for the Respondent: Ashurst Australia

ORDERS NSD 368 of 2013

BETWEEN: CLASUL PTY LTD (ACN 010 173 029) First Applicant

CHRISTINE ALBERTA HOSKING Second Applicant

BURNS BLOODSTOCK Third Applicant

AND: COMMONWEALTH OF AUSTRALIA Respondent

JUDGE: FOSTER J DATE OF ORDER: 30 august 2016

THE COURT ORDERS THAT:

1. Pursuant to s 33ZF of the Federal Court of Australia Act 1976 (Cth) (the Act), The Macquarie Stud, David Baxter and John Baxter be deemed to have effectively opted out of this proceeding notwithstanding that none of them provided an opt out notice to the Court by 9 August 2016 as required by the Orders of the Court made on 12 July 2016 although each of them did provide such a notice to the Court on 22 August 2016. 2. Pursuant to s 33V and s 33ZF of the Act: (a) The settlement of the proceeding be approved upon the terms set out in the Deed of Settlement dated 29 June 2016 (Deed) which is Annexure AJW-2 to the affidavit of Andrew John Watson affirmed on 8 July 2016; and (b) The applicants be authorized nunc pro tunc to enter into and give effect to the Deed for and on behalf of Group Members (as defined in the Fifth Further Amended Statement of Claim filed on 16 March 2016 but not including those persons and entities specified in Order 1 above and those persons and entities who opted out of the proceeding by sending to the Court by 9 August 2016 an opt out notice which notices are contained in a folder of documents identified as "Opt Out Notices – Clasul Pty Ltd ACN 010 173 029 v Commonwealth of Australia NSD368/2013" marked as "Exhibit A" in this proceeding). 3. Pursuant to s 33ZB and s 33ZF of the Act, the persons affected and bound by the orders in par 2 above are the applicants, the respondent and the Group Members other than those who have opted out of the proceeding (as to which see Exhibit A). 4. All previous costs orders made in this proceeding be vacated. 5. Order 9 made on 12 July 2016 be vacated. 6. Pursuant to s 37AF(1)(b) of the Act, the evidence contained in the affidavit of Andrew John Watson affirmed on 23 August 2016 and filed herein (including Annexure AJW-3 thereto) not be published or disclosed without the prior leave of a Judge to any person or entity other than the applicants, the applicants' lawyers, the Judge with the carriage of the matter from time to time and officers of the Court to whom it is necessary to disclose the evidence. 7. The proceeding be dismissed: (a) With each party to bear his, her or its own costs (as the case may be); and (b) Without prejudice to the parties' ability to relist the matter for the purpose of seeking orders consequential to the Deed or relating to the security lodged with the Court. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.