Smith v Commonwealth of Australia (No 2) [2020] FCA 837

FEDERAL COURT OF AUSTRALIA

Smith v Commonwealth of Australia (No 2) [2020] FCA 837 File number: NSD 1908 of 2016 NSD 1155 of 2017 NSD 1388 of 2018

Judge: LEE J

Date of judgment: 5 June 2020

Catchwords: REPRESENTATIVE PROCEEDINGS – applications for approval of settlements of three class actions pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth) – where three class actions commenced against the Commonwealth – where each class action advanced claims in nuisance, negligence and for contraventions of Environment Protection and Biodiversity Conservation Act 1999 (Cth) – where claims alleged damage in relation to land and business value diminution caused by use of firefighting foam containing per- and poly-fluoroalkyl substances at Royal Australian Air Force bases – where large number of submissions made by group members opposed to approval of the settlements – where several group members made oral submissions during hearing of applications for settlement approval – consideration of views of and feelings expressed by objectors – where proposed settlement sums as a percentage of the best possible quantum recoverable "excellent" – proposed deductions from settlement sum to be paid to litigation funder – consideration of principles concerning proposed deductions for litigation funding costs – where proposed percentage of deductions from settlement sum to be paid to litigation funder substantially lower that percentage funder entitled to under funding agreements – proposed percentage deduction just – proposed deductions from settlement sum for legal costs – where two class actions commenced by one firm of solicitors and third class action brought by separate firm – where three class actions case managed together – where one class action could have been brought as a matter of law and practicality – where legal costs would have been reduced if proceedings brought as one class action – consideration of special circumstances of these class actions – where expense sharing order proposed to distribute costs incurred in one class action across two class actions commenced by same solicitors – consideration of relevant principles – where referee appointed to inquire into and report upon reasonableness of legal costs in all proceedings – where reports of referee in each proceeding adopted by the Court in full – proposed deductions allowed – proposed deductions from settlement sum for representative applicants – consideration of relevant principles – where applicants in one class action sought payments to be made to members of a class action "steering committee" – where proposed quantum of payments excessive – where representative applicant in one class action subject to harassment by reason of having acted in that capacity – payment to an applicant allowed in an amount that exceeds recompense for time spent acting in representative capacity – settlements approved HIGH COURT AND FEDERAL COURT – where non-confidential opinions and submissions filed on settlement approval applications contained sufficiently detailed information – consideration of fundamental principle of open justice – applications for approval considered without regard to confidential opinions