Federal Court of Australia Davison v Commissioner of Police, NSW Police Force [2021] FCA 1324 File number(s): NSD 1063 of 2020 Judgment of: GRIFFITHS J Date of judgment: 28 October 2021 Catchwords: REPRESENTATIVE PROCEEDINGS – closed class representative proceeding brought on behalf of Indigenous Australians under s 46PO of Australian Human Rights Commission Act 1986 (Cth) – settlement approval application pursuant to s 33V of Federal Court of Australia Act 1976 (Cth) – whether proposed settlement sum and distribution scheme fair and reasonable and in interests of all group members – settlement approved PRACTICE AND PROCEDURE – application for non-publication orders over various documents including Settlement Deed – whether non-disclosure necessary to prevent prejudice to proper administration of justice – orders made Legislation: Australian Human Rights Commission Act 1986 (Cth) ss 46P, 46PH(1B)(b), 46PO Federal Court of Australia 1976 (Cth) ss 33V, 33ZB, 33ZF, 37AE, 37AF, 37AG Racial Discrimination Act 1975 (Cth) ss 9, 11, 13, 18A, 18C, 18E Cases cited: Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 4) [2018] FCA 1243 Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741 Bropho v Western Australia [2008] FCAFC 100; 169 FCR 59 Caason Investments Pty Ltd v Cao (No 2) [2018] FCA 527 Caason Investments Pty Ltd v International Litigation Partners No 3 Ltd [2018] FCAFC 176; 265 FCR 487 Cantor v Audi Australia Pty Ltd (No 5) [2020] FCA 637 Clark v National Australia Bank Ltd (No 2) [2020] FCA 652 Clime Capital Ltd v UGL Pty Ltd (No 2) [2020] FCA 257 Earglow Pty Ltd v Newcrest Mining Ltd [2016] FCA 1433 Endeavour River Pty Ltd v MG Responsible Entity Ltd [2019] FCA 1719 Lifeplan Australia Friendly Society Ltd v S&P Global Inc [2018] FCA 379 Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission [1998] FCA 1650; 91 FCR 8 McKenzie v Cash Converters International (No 3) [2019] FCA 10 Money Max Int Pty Ltd (Trustee) v QBE Insurance Group Ltd [2016] FCAFC 148; 245 FCR 191 Peterson Superannuation Fund Pty Ltd v Bank of Queensland Ltd (No 3) [2018] FCA 1842; 132 ACSR 258 Smith v Commonwealth of Australia (No 2) [2020] FCA 837 Williams v FAI Home Security Pty Ltd (No 4) [2000] FCA 1925; 180 ALR 459 Zantran Pty Ltd v Crown Resorts Ltd [2019] FCA 641; 370 ALR 516 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 72 Date of hearing: 27 October 2021 Counsel for the Applicant: Ms C Ronalds AO SC with Mr E L Olivier Solicitor for the Applicant: National Justice Project Solicitor for the First Respondent: Ms A Shields of Norton Rose Fulbright Counsel for the Second Respondent: Dr T Hickie Solicitor for the Second Respondent: Ms P Beaumont ORDERS NSD 1063 of 2020 BETWEEN: RAYMOND WILLIAM DAVISON Applicant AND: COMMISSIONER OF POLICE, NEW SOUTH WALES POLICE FORCE First Respondent BIDWILL INVESTMENTS PTY LTD ACN 117 100 053 T/A BIDWILL HOTEL Second Respondent order made by: GRIFFITHS J DATE OF ORDER: 28 October 2021 THE COURT ORDERS THAT: Approval of settlement 1. Pursuant to ss 33V and 33ZF of the Federal Court Act 1976 (Cth) (the Act), settlement of the proceeding be approved on the terms set out in: (a) the Deed of Settlement executed by the applicant and the respondents dated 29 July 2021 (Settlement Deed); and (b) the scheme for the distribution of the settlement proceeds (Settlement Distribution Scheme), being pages 84 to 89 of the Confidential Exhibit AT-3 to the affidavit of Anna Camille Talbot affirmed 18 October 2021. 2. Pursuant to s 33ZF of the Act, the Court authorises the applicant nunc pro tunc for and on behalf of persons listed in Schedule A to the statement of claim filed on 17 September 2020 and who have not filed an opt out notice (Group Members) to enter into and give effect to the Settlement Documents and the transactions contemplated for and on behalf of Group Members. 3. Pursuant to ss 33ZB of the Act, the persons affected and bound by the settlement of the proceedings be the applicant, the respondents and the Group Members. Applicant's costs and expenses 4. Pursuant to ss 33V and/or 33ZF of the Act, for the purposes of the Settlement Distribution Scheme approved pursuant to order 1, the following distributions from monies paid under the settlement be approved: (a) $16,500 for the applicant's legal costs and disbursements on a solicitor and own client basis, incurred in connection with the proceeding on his own behalf and on behalf of the Group Members; and (b) $1,000 for the applicant's reasonable claim for compensation for the time and expenses incurred in the interests of prosecuting the proceeding on behalf of Group Members. Appointment of Administrator 5. Pursuant to section 33ZF of the Act, National Justice Project Limited be appointed Administrator of the Settlement Distribution Scheme (Administrator) and is to act in accordance with the rules the Settlement Distribution Scheme. Other orders 6. The applicant has liberty to apply, without further notice to the respondents, to re-list the proceeding as soon as practicable, and no later than thirty days, after completion of the distribution of the Settlement Distribution Fund (as defined in cl 1 of the Settlement Distribution Scheme) for the purpose of making final orders, including orders that: (a) the proceeding be dismissed, on the basis that the dismissal is a defence and absolute bar to any claim (either directly or indirectly) or proceeding by the applicant or any Group Member as against the respondents in respect of, or relating to, the subject matter of the proceeding, without prejudice to: (i) the right of any party to the Settlement Deed to make an application to enforce the Settlement Deed in a new proceeding; or (ii) the right of any Group Member to make application to the Court in accordance with the terms of the Settlement Distribution Scheme; or (iii) the right of the Administrator to refer any issues relating to the Settlement Distribution Scheme to the Court for direction or determination in accordance with the terms of the Settlement Distribution Scheme. (b) there be no order as to costs of the proceeding as between the applicant and the respondents, and all previous costs orders in the proceeding are vacated. Confidentiality 7. As of 28 October 2021, order 2 of the orders dated 10 August 2021 is vacated and replaced with orders 8 and 9 below. 8. Pursuant to ss 37AF and 37AG(1) of the Act, in order to prevent prejudice to the proper administration of justice, the material identified in Annexure "A" to these orders: (a) is to be treated as confidential; and (b) is not be published or made available and not be disclosed to any person or entity except to: (i) Griffiths J and his personal staff; (ii) any officer of the Court authorised by Griffiths J; and such permitted disclosures to be upon terms that none of those parties or persons disclose that material or any part thereof to any other person or entity. 9. Pursuant to ss 37AF and 37AG(1) of the Act, in order to prevent prejudice to the proper administration of justice, the material identified in Annexure "B" to these orders: (a) is to be treated as confidential; and (b) not be published or made available and not be disclosed to any person or entity except to: (i) Griffiths J and his personal staff; (ii) any officer of the Court authorised by Griffiths J; (iii) the applicant and his legal representatives; (iv) the respondents and their legal representatives; and such permitted disclosures to be upon terms that none of those parties or persons disclose that material or any part thereof to any other person or entity. ANNEXURE "A" #Document Part Confidential Advice of Counsel dated 18 October 2021 Whole Affidavit of Anna Camille Talbot affirmed 18 October 2021 Paragraphs 38 and 39 Confidential Exhibit AT-4 Whole ANNEXURE "B" #Document Part Exhibit AT-2 Page 4 (complainant's contact details); pages 18-19 (complainant and class member's contact details); page 20 (complainant's contact details); pages 32-33 (complainant and class member's contact details) The Deed of Settlement executed on 29 July 2021, contained in Exhibit AT-3 Pages 1-31, except for the settlement sum. Second Respondent's submissions dated 22 October 2021 Paragraphs 6, 7 and 13 (applicant's and group members' contact details) Second Respondent's submissions dated 25 October 2021 Paragraph 2 (applicant's contact details) Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT GRIFFITHS J: 1 This is an application for approval of a settlement of a closed class representative proceeding under Pt IVA of the Federal Court of Australia 1976 (Cth) (FCA Act) brought by the lead applicant, Mr Raymond William Davison, on behalf of 28 group members (the Group Members), each of whom is an Indigenous Australian. The proceeding is brought against the Commissioner of Police of the NSW Police Force (the first respondent) and Bidwill Investments Pty Ltd (the second respondent). The proceeding, instituted pursuant to s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act), alleges that the respondents engaged in racial discrimination in contravention of ss 9(1), 11, 13 and/or 18C(1) of the Racial Discrimination Act 1975 (Cth) (RD Act) towards the applicant and some or all of the Group Members, and that as a result, each suffered loss or damage due to emotional distress and psychological harm, feelings of humiliation and being degraded, and feelings that they were not entitled to the same legal protections as other Australians. 2 An agreement has been reached to settle the proceeding, which is formalised in a Deed of Settlement executed on 29 July 2021 (Settlement Deed). This settlement has been reached in the proceeding at an early stage following the close of pleadings and the production of a small number of documents by the respondents. No evidence has been filed on behalf of any of the parties in the substantive proceeding. 3 Pursuant to s 33V of the FCA Act, the Court is required to approve the settlement reached between the parties in this proceeding, and approve the proposed scheme for the distribution of the settlement proceeds (the Settlement Distribution Scheme). 4 The applicant has filed the following material in support of its approval application: (a) an affidavit affirmed 18 October 2021 by Ms Anna Camille Talbot, annexing relevant documentation, including (but not limited to): (i) the Settlement Deed; (ii) the Settlement Distribution Scheme; (iii) copies of the notice of settlement and opt-out approved by the Court (Notice) and distributed to Group Members; and (iv) draft invoices of counsel and the National Justice Project (NJP), the applicant's solicitor; (b) an outline of written submissions dated 18 October 2021; and (c) a confidential advice of counsel dated 18 October 2021. 5 The applicant also sought non-publication orders over some documents annexed to the affidavit of Ms Talbot and other material provided to the Court in support of the settlement approval application, including the Settlement Deed. I will return below to discuss the non-publication orders sought by the applicant. 6 For the following reasons, I am satisfied on the material before the Court that the settlement and proposed orders giving effect to such a settlement should be approved pursuant to ss 33V and 33ZF of the FCA Act. The proceedings summarised The factual background 7 The events underlying the claims of the applicant and Group Members, each of whom is an Indigenous Australian, can be summarised as follows. 8 On 22 February 2019, the applicant and Group Members, amongst other persons, attended the funeral service of an Indigenous man in Emerton, NSW at about 11:30 am. After the funeral service, at around 12:30 pm, the applicant and Group Members attended a wake for the deceased person at the Baabayn Women's Group Centre located at the Holy Family Church in Auburn. 9 At around 1:20 pm, the applicant and Group Members departed the wake individually or in small groups with the intention of attending the Bidwill Hotel as a group. By around 1:30 pm, some of the Group Members had entered the Bidwill Hotel and ordered food and drinks. After that time, however, the staff and management of the Bidwill Hotel informed Group Members who had not entered the hotel that they would not be permitted entry and were required to leave the vicinity of the hotel. Other Group Members who had previously entered the hotel came outside and allege they were also denied re-entry. It is alleged that, at the same time, Bidwill staff permitted non-Indigenous persons to enter the hotel while a man of Indigenous appearance, not with the same group as the Group Members, was also denied entry. 10 Shortly before 2 pm, staff of the Bidwill Hotel made a report to the NSW Police Force (NSWPF) that approximately 100 people had arrived at the Bidwill Hotel for a wake without a booking and were becoming verbally abusive towards staff after having been refused entry. A similar report was received from the licensee of the Bidwill Hotel, who alleged there was 60 people who had arrived. The applicant alleges this exaggerated the number of persons who had arrived at the Bidwill Hotel and wrongly described them as behaving in an aggressive and abusive manner. 11 In response to the reports, the NSWPF made several "All RESOURCES" broadcasts over police radio and a number of NSWPF officers arrived at the Bidwill Hotel, including uniformed police, plain clothes detectives and members of the Dog Unit. The NSWPF officers informed the applicant and Group Members that they would not be permitted entry and were required to leave the vicinity. The applicant and Group Members allege they were intimidated by the large number of police officers, including the Dog Unit. In particular, it is alleged that the Dog Unit's vehicles were positioned in such a way, with their doors open, that their caged police dogs could be seen and heard by the applicant and Group Members, causing distress. There is no evidence before the Court that establishes how many police officers attended the Bidwill Hotel. 12 The applicant also alleges that a number of non-Indigenous patrons standing inside the front window of the Bidwill Hotel began raising their glasses, smirked and laughed towards the applicant and Group Members, and that the Bidwill staff and NSWPF officers did nothing to cause those persons to cease mocking or humiliating them. 13 Subsequently, the applicant and some of the group members (the Carousel Group Members) left the Bidwill Hotel with the intention of attending another licensed premises known as the Carousel Hotel. The applicant alleges that one or more of the police officers followed them to the Carousel Hotel. 14 Shortly after 2:10 pm, a number of the Carousel Group Members entered the Carousel Hotel. At the same time, the applicant alleges that a number of NSWPF officers arrived at the hotel. 15 The Carousel Group Members allege that a NSWPF Police Operations Liaison Officer called the Carousel Hotel and told the manager that: (a) about 100 people had been turned away from the Bidwill Hotel; (b) police had required the group to leave the Bidwill Hotel; (c) the persons in the group are Indigenous; and (d) the group was heading to the Carousel Hotel. 16 As a result of the telephone call, the applicant alleges that the owner directed the manager and staff at the Carousel Hotel to refuse entry and service to the Carousel Group Members. The applicant also alleges that one or more NSWPF officers also directed staff members to cease serving them. The procedural history and claims summarised 17 On 10 September 2019, the applicant lodged two complaints with the Australian Human Rights Commission (AHRC) under s 46P of the AHRC Act. The first complaint, lodged on behalf of all Group Members who attended the Bidwill Hotel on 22 February 2019, alleged that the respondents had unlawfully discriminated against the applicant and Group Members in breach of the RD Act (First AHRC Complaint). The second complaint, lodged on behalf of the Carousel Group Members, similarly alleged that the Commissioner had unlawfully discriminated against the applicant and the Carousel Group Members in breach of the RD Act (Second AHRC Complaint). 18 The Second AHRC Complaint was amended on or around 11 May 2020, 23 June 2020 and 5 August 2020. 19 On 9 June 2020, the AHRC held a conciliation conference with Bidwill in relation to the First AHRC Complaint. The complaint was not resolved at that conference. 20 On 14 July 2020, the AHRC held a conciliation conference with the Commissioner in relation to the First and Second AHRC Complaints. The complaints were not resolved at that conference. 21 On 22 July 2020 and 12 August 2020, a delegate of the President of the AHRC terminated the First and Second AHRC Complaints pursuant to s 46PH(1B)(b) of the AHRC Act, on the grounds that there was no reasonable prospect of the complaints being settled by conciliation. 22 On 17 September 2019, the applicant commenced representative proceedings under s 46PO of the AHRC Act and Part IVA of the FCA Act concerning the matters the subject of the two complaints, the substance of which can be summarised as follows. 23 In relation to the events at the Bidwill Hotel, the applicant alleges that the actions of the Bidwill staff members and NSWPF officers involved conduct within the remit of the RD Act which involved distinctions, exclusions, restrictions and preferences based on race. The applicant alleges that these distinctions, exclusions, restrictions and preferences had the effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing of the following human rights or fundamental freedoms of the applicant and Group Members, in breach of s 9(1) of the RD Act: (a) equality before the law and equal treatment before all organs administering justice (Art 5(a) of the International Convention on the Elimination of all Forms of Racial Discrimination (ICERD)); (b) the right of access to any place or service intended for use by the general public (Art 5(f) of the ICERD); and (c) equality before the law and equal protection of the law without any discrimination (Art 26 of the International Covenant on Civil and Political Rights). 24 In the alternative, the applicant alleges that the conduct of the Bidwill staff members and NSWPF officers, by reason of race: (a) was an unlawful refusal to access a place or facility, namely the Bidwill Hotel, which other members of the public were entitled or allowed to enter or use (s 11 of the RD Act); (b) was an unlawful refusal to supply goods or services by the Bidwill Hotel that was available to other members of the public (s 13 of the RD Act); and/or (c) was an act or acts that was reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate the applicant and Group Members (s 18C of the RD Act). 25 In relation to the Carousel Hotel events, the applicant similarly alleges that the NSWPF officers and Police Operations Liaison Officer engaged in conduct that breached s 9 of the RD Act for the same reasons advanced at [23] above. 26 The applicant contends that the Commissioner and Bidwill are vicariously liable for the actions of the NSWPF officers and Police Operations Liaison Officer, and Bidwill staff members, respectively, as employees and/or agents pursuant to s 18A(1) and/or 18E(1) of the RD Act. 27 On 21 October and 18 November 2020 respectively, Bidwill and the Commissioner filed their defences, in which they deny the allegations made against them by the applicant and deny the entitlement of Group Members to the relief claimed. 28 Bidwill's primary position is that the Group Members had attended the Bidwill Hotel for the purposes of holding a wake, that they were denied entry because licensing restrictions prevented Bidwill from hosting functions, and that there were insufficient staff and security on site to cater for such an event. 29 The Commissioner's position in relation to the Bidwill Hotel events is that in circumstances where Bidwill staff members were denying entry to Group Members due to licensing restrictions, NSWPF officers did not have the power to force the manager of the Bidwill Hotel to permit them entry, and the police presence was an appropriate response to the reports received from Bidwill. The Commissioner also denies that the Dog Unit was used to intimidate the Group Members and stated that the doors of the police vehicles were opened to provide the police dogs with fresh air to ensure they did not overheat. The Commissioner further contended that the NSWPF officers who attended the Bidwill Hotel did not observe any non-Indigenous patrons mocking and/or humiliating the Group Members. 30 In relation to the Carousel Hotel events, the Commissioner admits that two NSWPF officers drove to and remained in the car park of the Carousel Hotel, but denies that they entered the premises. The Commissioner however admits the fact and content of the call made to the manager of the Carousel Hotel by the Police Operations Liaison Officer. 31 On 21 December 2020, pursuant to orders made on 20 October 2020, the parties attended a mediation before a Registrar of the Court. The proceeding was not resolved at that mediation. 32 On 2 February 2021, the parties attended a continuation of the mediation before the Registrar by telephone. The proceeding was not resolved at that mediation. 33 The parties then engaged in extended settlement discussions. The proceedings were adjourned on a number of occasions while those settlement discussions occurred. 34 On 29 July 2021, the Settlement Deed was executed by the parties effecting the settlement of the proceeding, subject to Court approval pursuant to s 33V of the FCA Act. 35 On 10 August 2021, orders were made by consent: (a) listing the determination of the Settlement Approval Application for hearing on 27 October 2021 and making a timetable for the filing of evidence and submissions on the application; (b) fixing 4:00 pm on 21 September 2021 as the time and date for Group Members to opt-out of the proceeding (Class Deadline); (c) requiring Group Members to register their claims in order to seek a benefit pursuant to any settlement of the proceeding by providing an approved registration form to NJP by the Class Deadline; (d) providing a procedure for Group Members to object to the settlement; and (e) approving the form and content of an opt-out and settlement notice (Notice) and the procedure for distribution of that Notice to Group Members. Notification of group members 36 On 10 August 2021, the Court approved the form of the Notice regarding opt-out and the proposed settlement to be provided to Group Members, including the minimum amount they would receive from the settlement distribution ($1200). The Notice informed Group Members of their right to opt-out of the proceeding and the requirement to register in order to seek a benefit under the proposed settlement by the Class Deadline. The Notice also included the details of the approval hearing and informed Group Members how they could object to the proposed settlement (whether or not they registered to participate). 37 I am satisfied that the Notice was distributed by NJP to all Group Members in accordance with orders of the Court made on 10 August 2021. By the Class Deadline, all Group Members had registered their claims with NJP in accordance with those orders. Ms Talbot deposed that, as at the date of her affidavit, no Group Member has opted out or indicated that they intend to opt-out or object to the proposed settlement. I accept that evidence. The settlement and settlement scheme summarised 38 As noted above, the parties have entered into the Settlement Deed under which the respondents have agreed to pay a sum of $60,000, inclusive of legal costs and other expenses, to settle the class action (the settlement sum). The parties propose to distribute the compensation payable in accordance with a settlement scheme run by administrator, Adjunct Professor George Newhouse of the NJP. 39 The parties propose the following amounts to be deducted from the settlement sum prior to distribution to the applicant and Group Members: (a) an amount of $16,500 to NJP for the applicant's legal costs and disbursements; and (b) an amount of $1,000 to the applicant as compensation for his time and expenses incurred in prosecuting the proceeding on behalf of the Group Members. 40 The NJP will not deduct any additional amount for NJP's costs of administering the scheme. 41 As all Group Members have registered to participate in the proposed settlement, under the Settlement Distribution Scheme: (a) the applicant and the Carousel Group Members will each receive a Final Settlement Entitlement of $1,585.82 (before accrued interest, bank fees or tax); and (b) other Group Members (i.e. those who are not Carousel Group Members) will each receive a Final Settlement Entitlement of $1,268.65 (before accrued interest, bank fees or tax). 42 The applicant submits that the larger Final Settlement Entitlement payable to the Carousel Group Members reflects the fact that they have additional claims against the Commissioner that will be settled as part of the proposed settlement. 43 A correction was required to the formula in the proposed Settlement Distribution Scheme for calculating the Final Settlement Entitlement, as compared to the formula in the Settlement Distribution Scheme that was provided to Group Members with the Notice. The applicant submits that the Court should approve the settlement on the basis of the Settlement Distribution Scheme with the amended formula, as Group Members will all still receive a larger distribution under the amended formula than the minimum $1,200 distribution notified to them in the Notice. I accept that submission. Relevant legal principles 44 The principles concerning the Court's role and relevant factors for the exercise of the Court's discretion to approve a settlement under s 33V of the FCA Act are not in dispute and may be summarised briefly as follows. 45 In McKenzie v Cash Converters International (No 3) [2019] FCA 10 at [24], Lee J explained the Court's role in settlement approval hearings as follows: First, the Court assumes an onerous and protective role in relation to group members' interests, in some ways similar to Court approval of settlements on behalf of persons with a legal disability; secondly, the Court must be astute to recognise that the interests of the parties before it and those of the group as a whole (or as between some members of the group and other members) may not wholly coincide; thirdly, and connected to the second point, the Court should be alive to the possibility that a settlement may reflect conflicts of interest or conflicts of duty and interest between participants in the common enterprise which has conducted the representative proceeding; fourthly, the Court should understand that at that point of settlement approval, the interests of the parties have merged in the settlement and both sides may not critique the settlement from the perspectives of the group members who may suffer a detriment or obtain lesser benefits through the settlement; fifthly, the Court must decide whether the proposed settlement is within the range of reasonable outcomes, not whether it is the best outcome which might have been won by better bargaining (in this way, the Court's task is not to second-guess the applicant's lawyers, and it should recognise that different applicants and different lawyers will have different appetites for risk). (For a broader summary of principles, see Camilleri v Trust Company (Nominees) Ltd [2015] FCA 1468 at [5] per Moshinsky J.) 46 In Williams v FAI Home Security Pty Ltd (No 4) [2000] FCA 1925; 180 ALR 459 at [19], Goldberg J identified a number of factors that ordinarily will be relevant in determining whether the proposed settlement is fair and reasonable, having regard to the interests of group members: Ordinarily in such circumstances the court will take into account the amount offered to each group member, the prospects of success in the proceeding, the likelihood of the group members obtaining judgment for an amount significantly in excess of the settlement offer, the terms of any advice received from counsel and from any independent expert in relation to the issues which arise in the proceeding, the likely duration and cost of the proceeding if continued to judgment, and the attitude of the group members to the settlement. 47 These factors are now reflected in this Court's Class Actions Practice Note (GPN-CA) at [15.5]. They are used as a guide, in so far as they are relevant to the circumstances of the case, rather than as part of some "tick the box" approach (see Caason Investments Pty Ltd v Cao (No 2) [2018] FCA 527 at [13] per Murphy J). 48 In assessing the reasonableness of a settlement sum, Lee J in Smith v Commonwealth of Australia (No 2) [2020] FCA 837 observed at [11]-[12] that: 11 Reasonableness, as one would expect from such an amorphous term, is a range. And the question for me is whether the settlements as proposed fall within a range the Court can characterise as fair and reasonable. Connected to this, is that it is not the Court's role to second-guess the strategic decisions made by the applicants' legal representatives, and that there is no definitive set of factors that may or may not be taken into account in assessing whether the conditional settlement is reasonable. 12 Although there are factors which have been stressed which deserve particular attention (some of which are referred to in the Class Actions Practice Note (GPN-CA) at para 15.5), the inquiry is not in any way fettered so as to amount to a "check-list". It is a broad, evaluative and impressionistic decision, which is not to be seen as a form of calculus. Consideration and determination The reasonableness of the settlement sum and Settlement Deed 49 For the following reasons, I am satisfied that the settlement sum and Settlement Deed are fair and reasonable and in the interests of all Group Members. 50 First, I accept, based on the confidential advice of counsel and the affidavit of Ms Talbot, that the settlement sum of $60,000 is within the range of reasonableness and in the interests of all Group Members, particularly in light of: (a) the stage that the proceeding has reached and the likely duration of the litigation if it were to continue; (b) the risks of establishing liability, loss and damage, and maintaining the class action; and (c) the range of reasonableness of the settlement in light of the best recovery and all the attendant risks of litigation. 51 I consider that significant weight should be afforded to the confidential advice and aforementioned affidavit. Counsel for the applicant, Ms Chris Ronalds SC and Mr Eliot Oliver, have been involved in the proceeding since it commenced and have provided detailed advice in support of the reasonableness of the settlement sum. I am satisfied that it meets the high expectations of the Court with respect to such confidential legal advice of counsel as explained by Lee J in McKenzie (No 3) at [26]-[27]. Similarly, Ms Talbot has demonstrated experience acting in public interest and class action litigation and therefore her opinion as to the reasonableness of the settlement sum carries weight. 52 Secondly, the applicant and Group Members could face real risks in establishing both liability and the quantum of loss if the matter was to proceed to trial. The applicant's pleaded case relies on establishing racial discrimination under the RD Act, which will require him to demonstrate that the respondents' relevant conduct was "based on" their race rather than other factors such as licensing restrictions (see Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission [1998] FCA 1650; 91 FCR 8 at 27 per Weinberg J, approved in Bropho v Western Australia [2008] FCAFC 100; 169 FCR 59 at [68]-[69] per Ryan, Moore and Tamberlin JJ). Furthermore, compensation under s 46PO(4)(d) of the RD Act is limited to a claim for general damages. The applicant's pleaded damages, namely emotional distress and psychological harm, feelings of humiliation and degradation, and feelings of not being entitled to the same legal protections as other Australians, may be difficult to quantify if the applicant was successful in establishing any liability against the respondents. 53 Thirdly, while the proceeding has settled at a fairly early stage, before the filing of any evidence in the substantive proceeding, I am satisfied that the applicant's counsel and legal representatives have, on the basis of evidence obtained so far, reasonably formed the view that the settlement is in the best interests of all Group Members. The applicant and respondents have reached this settlement following unsuccessful conciliations with the AHRC, an unsuccessful mediation before a Registrar of the Court, and lengthy settlement discussions between the parties. Given the proceeding is at a relatively early stage, the applicant would also face a substantial amount of work if the matter was to proceed to a hearing, including at least the preparation of evidence, further discovery and preparation for and attendance at trial. Furthermore, as there is no third-party litigation funder in this proceeding, the applicant is at risk of a fairly substantial adverse costs order if the matter were to proceed to trial and was ultimately unsuccessful. 54 Fourthly, I am satisfied that the terms of the Settlement Deed are fair and reasonable and do not pose an undue burden on Group Members. I will return below to consider the non-publication orders sought over the Settlement Deed and other supporting material. 55 Finally, as submitted by the applicant, unlike large class actions where many group members will have a low level of engagement, in this case the Group Members are part of a relatively small closed class and were required actively to register their claims in order to participate in the proposed settlement, on notice of its key terms. In the circumstances, the absence of any objection by the Group Members and the fact that all the Group Members have registered to participate in the proposed settlements weighs more heavily in favour of the approval of the settlement than it usually would (cf Money Max Int Pty Ltd (Trustee) v QBE Insurance Group Ltd [2016] FCAFC 148; 245 FCR 191 at [50] per Murphy, Gleeson and Beach JJ; Earglow Pty Ltd v Newcrest Mining Ltd [2016] FCA 1433 at [198] per Murphy J; Caason (No 2) at [49]). The proposed Settlement Distribution Scheme 56 As to the proposed Settlement Distribution Scheme, in its outline of written submissions dated 22 October 2021, Bidwill sought to highlight the following issues regarding the proposed Settlement Distribution Scheme contained in Annexure AT-3 to Ms Talbot's affidavit: (a) Raymond Stan Charles Davison (Raymond Stan Davison) was not listed in Annexure "A" of the First AHRC complaint, but was listed in the Second AHRC complaint. That is, Raymond Davison did not attend the Bidwill Hotel, but did attend the Carousel Hotel. Yet, under the proposed Settlement Distribution Scheme, Raymond Stan Davison as a Carousel Group Member was deemed to be entitled to 25% more of the settlement proceeds than non-Carousel Group Members, despite having no claims relating to the events at Bidwill Hotel (the first issue). (b) Bidwill contended some Group Members were never refused entry or service at the Bidwill Hotel and were inside the Bidwill Hotel and simply left of their own accord when others who arrived later were denied entry. Bidwill contends this is clear from CCTV footage provided by Bidwill to the applicant. Bidwill sought to raise the possibility that these persons may form a separate sub-group (the second issue). (c) While the affidavit of Ms Talbot deposes that the applicant and Carousel Group Members have additional claims against the Commissioner arising from the events transpiring at the Carousel Hotel, the applicant was not listed as a class member in the Second AHRC complaint. As such, Bidwill contends that the applicant should not be entitled to the additional $317.17 (the third issue). 57 Subsequently, Ms Anna Camille Talbot affirmed an affidavit dated 26 October 2021, which explained the issues identified at [56](a) and [56](c) above as follows: (a) With respect to the first issue, Ms Talbot explained that Annexure A to the First AHRC Complaint lists the applicant, Raymond William Davison, twice (both as the lead complainant and as a class member), but fails to list Raymond Stan Davison as a class member. Ms Talbot deposed that she believed this was an error in the annexure to the First AHRC Complaint, and that the applicant should have been listed once as the lead complainant and Raymond Stan Davison should have been listed as a class member. (b) With respect to the third issue, Ms Talbot corrected her affidavit affirmed on 22 September 2020 which only listed two of the three amendments made to the Second AHRC Complaint. The third amendment, as reflected in a letter from the AHRC to Ms Talbot dated 12 August 2020 annexed to her affidavit, confirms that the effect of the third amendment was to include the applicant as a class member of the Second AHRC Complaint. 58 I accept Ms Talbot's evidence. 59 In relation to the second issue, I am satisfied that the current division in the Settlement Distribution Scheme between the non-Carousel Group Members and Carousel Group Members is adequate. While some Group Members may not have initially been refused service by Bidwill, their claims may still extend to being denied re-entry with other Group Members, the failure of NSWPF officers and Bidwill staff to prevent certain behaviour from patrons, and also to claims against the Commissioner. In those circumstances, I do not think it is appropriate to split those group members into a further sub-group. 60 I am therefore satisfied that the Court should make orders approving the Settlement Distribution Scheme. The Settlement Distribution Scheme provides for a fair division of the proceeds as between Group Members, and the settlement administration process does not involve unreasonable costs or delay (Caason (No 2) at [91]; Endeavour River Pty Ltd v MG Responsible Entity Ltd [2019] FCA 1719 at [11] per Murphy J). 61 In particular, I am satisfied that: (a) The formula for calculating individual distributions of the Settlement Sum to the applicant and Group Members, under which Carousel Group Members will receive a Financial Settlement Entitlement that is 25% greater than Group Members who are not Carousel Group Members, appropriately reflects the additional claims the Carousel Group Members have against the Commissioner that will be settled as part of the proposed settlement. (b) It is fair, reasonable and proportionate to the overall outcome of the litigation that NJP, a not-for-profit social justice law firm, receive the proposed distribution of $16,500 for its legal costs and disbursements incurred, which is a fraction of the legal costs it has incurred in prosecuting the proceeding. (c) The applicant's reimbursement payment of $1000 is reasonable compensation for the time and expense incurred by him in prosecuting the proceeding on behalf of Group Members. It is well established that a representative applicant may be entitled to reimbursement from a settlement sum for time and expenses incurred in the prosecution of a representative proceeding on behalf of group members (Caason Investments Pty Ltd v International Litigation Partners No 3 Ltd [2018] FCAFC 176; 265 FCR 487 at [5] per Allsop CJ, Middleton and Perram JJ). (d) It is appropriate for NJP to be appointed as the settlement administrator of the Settlement Distribution Scheme. The evidence demonstrates that Ms Talbot and Adjunct Professor Newhouse of NJP are experienced in class action and other group litigation. NJP also already holds the registration details for the Group Members and, unlike in many class actions which include thousands of group members, the number of persons to whom distributions are required to be made in this case is relatively small. Given that NJP has agreed to conduct the settlement administration without payment, I accept the applicant's submission that it is highly unlikely that a more cost efficient proposal could be found. The proposed confidentiality orders 62 Pursuant to the grant of leave in the orders dated 10 August 2021, the applicant filed 'confidential' versions of the affidavit of Ms Talbot and other documents over parts of which non-publication orders were sought under ss 37AF and 37AG(1) of the FCA Act. The draft orders sought by the applicant (with the consent of the first respondent) were as follows: 1. Pursuant to ss 37AF and 37AG(1) of the of the Federal Court of Australia Act 1976 (Cth) (the Act), in order to prevent prejudice to the proper administration of justice, the material identified in the Schedule of Confidential Material annexed to these orders and marked "A" (Annexure A): a. is to be treated as confidential; and b. is not be published or made available and not be disclosed to any person or entity except to: i. Griffiths J and his personal staff; ii. any officer of the Court authorised by Griffiths J; and such permitted disclosures to be upon terms that none of those parties or persons disclose that material or any part thereof to any other person or entity. 2. Pursuant to ss 37AF and 37AG(1) of the Act, in order to prevent prejudice to the proper administration of justice, the material identified in the Schedule of Confidential Material annexed to these orders and marked "B" (Annexure B): a. is to be treated as confidential: and b. not be published or made available and not be disclosed to any person or entity except: i. to Griffiths J and his personal staff; ii. any officer of the Court authorised by Griffiths J; iii. the applicant and his legal representatives; iv. the respondents and their legal representatives; and such permitted disclosures to be upon terms that none of those parties or persons disclose that material or any part thereof to any other person or entity. ANNEXURE "A" #Document Part Confidential Advice of Counsel dated 18 October 2021 Whole Affidavit of Anna Camille Talbot affirmed 18 October 2021 Paragraphs 38, 39, 70 Confidential Exhibit AT-4 Whole Applicant's submissions dated 18 October 2021 Paragraph 31 (after the words "proposed settlement" to the end of the first sentence" ANNEXURE "B" #Document Part Exhibit AT-2 Page 4 (complainant's contact details); pages 18-19 (complainant and class member's contact details); page 20 (complainant's contact details); pages 32-33 (complainant and class member's contact details) Exhibit AT-3 Pages 1-31 Second Respondent's submissions dated 22 October 2021 Whole Second Respondent's submissions dated 25 October 2021 Paragraph 2 (applicant's contact details) Relevant legal principles 63 The Court's power to make a non-publication or suppression order is governed by ss 37AE, 37AF and 37AG, which relevantly provide: 37AE Safeguarding public interest in open justice In deciding whether to make a suppression order or non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. 37AF Power to make orders (1) The Court may, by making a suppression order or non-publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of: (a) information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court; or (b) information that relates to a proceeding before the Court and is: (i) information that comprises evidence or information about evidence; or (ii) information obtained by the process of discovery; or (iii) information produced under a subpoena; or (iv) information lodged with or filed in the Court. (2) The Court may make such orders as it thinks appropriate to give effect to an order under subsection (1). 37AG Grounds for making an order (1) The Court may make a suppression order or non-publication order on one or more of the following grounds: (a) the order is necessary to prevent prejudice to the proper administration of justice; … (2) A suppression order or non-publication order must specify the ground or grounds on which the order is made. 64 In Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 4) [2018] FCA 1243, after reviewing relevant caselaw, Foster J stated at [34] that the "threshold which a suppression order applicant must satisfy is high. Mere embarrassment, inconvenience, annoyance or unreasonable or groundless fears will not suffice" (see also Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741 at [8]-[9] per Edelman J). These observations are equally applicable in the context of settlement approval applications. As Lee J stated in Lifeplan Australia Friendly Society Ltd v S&P Global Inc [2018] FCA 379 at [67]-[68]: 67 It must be remembered that Part VAA of the [FCA Act] provides that the starting point for the consideration of non-publication orders is the safeguarding of the public interest in open justice. In that regard, s 37AE provides clearly the mandatory consideration the Court must take into account in determining whether or not to exercise its power under Part VAA: In deciding whether to make a suppression order or non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. (emphasis added) 68 Non-publication orders should not be sought in some routine, automatic fashion. The grounds for making an order require the Court to be satisfied that the making of the order, relevantly, is necessary to prevent the mischief identified in ss 37AG(1)(a)-(b) of the [FCA Act]. Relevantly for present circumstances, the Court must be satisfied that the order is necessary "to prevent prejudice to the proper administration of justice" (see s 37AG(1)(a)). As the High Court remarked in Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 at 664 [30], the word 'necessary' is a "strong word". (To similar effect, see Cantor v Audi Australia Pty Ltd (No 5) [2020] FCA 637 at [268]-[277] per Foster J; Clime Capital Ltd v UGL Pty Ltd (No 2) [2020] FCA 257 at [11]-[17] per Anastassiou J; Caason (No 2) at [8]-[9] per Murphy J; Peterson Superannuation Fund Pty Ltd v Bank of Queensland Ltd (No 3) [2018] FCA 1842; 132 ACSR 258 at [18] per Murphy J; Clark v National Australia Bank Ltd (No 2) [2020] FCA 652 at [13]-[15] per Lee J and the cases cited therein.) 65 These matters are reflected in [17.1]-[17.2] of the Court's Class Actions Practice Note: 17.1 The legal representatives of the parties should be aware that confidentiality or non-publication orders will not be made otherwise than in accordance with Part VAA of the Federal Court Act which provides that the starting point for consideration of such orders, for the Court to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. 17.2 Such orders will only be made if the Court must be satisfied that the order is necessary to prevent prejudice to the proper administration of justice (s 37AG(1)(a)). It should be recalled that "necessary" is a "strong word": Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 at [30]. Should non-publication orders be made? 66 In respect of the non-publication orders sought in proposed order 1, I am satisfied that such orders should be made to prevent prejudice to the proper administration of justice, except for the orders sought over [70] of Ms Talbot's affidavit and [31] of the applicant's submissions dated 18 October 2021. Those two paragraphs merely disclose that the legal costs incurred by NJP were a fraction of those which they have sought to recover under the Settlement Distribution Scheme. The applicant did not press its claim for confidentiality over those paragraphs. As for the other documents referred to in Annexure A, I am satisfied that non-publication orders are necessary to prevent prejudice to the proper administration of justice because: (a) With respect to the confidential advice of counsel dated 18 October 2021, it is well-settled that non-publication orders should be made over such confidential advice as the "Court depends upon candour from Counsel as to the merits of a case" for such advice to be of assistance to the Court (Cantor at [275] per Foster J). (b) With respect to [38] and [39] of Ms Talbot's affidavit and Confidential Exhibit AT-4, which contains draft invoices of costs prepared by NJP and Mr Olivier of counsel, I am satisfied the publication of such material would disclose matters subject to legal professional privilege and legal work conducted that should otherwise be kept confidential (see Clime Capital at [22] per Anastassiou J and the cases cited therein). 67 In respect of the non-publication orders sought in proposed order 2 which related to the contact details of the applicant and Group Members (namely Items 1, 3 and 4 of the table in Annexure B), I am satisfied that such orders should be made to prevent prejudice to the proper administration of justice. 68 Finally, the applicant and first respondent seek non-publication orders over pages 1-31 of Exhibit AT-3 to Ms Talbot's affidavit, which is the Settlement Deed. 69 It has been recognised that where a settlement has been reached upon the basis of certain matters being kept confidential, as is the case here, this may weigh in favour of making a non-publication order. Indeed, the Settlement Deed includes confidentiality provisions. As stated by Foster J in Cantor at [272], "[e]ncouraging settlement, where such settlement is in terms approved by this Court, is in the interests of the proper administration of justice" (see also Zantran Pty Ltd v Crown Resorts Ltd [2019] FCA 641; 370 ALR 516 at [29] per Murphy J). 70 However, some of the details of the Settlement Deed, particularly the settlement sum, have been publically available on the Court file in documents over which the parties have not sought non-publications orders. The settlement sum was disclosed in the orders made by consent on 10 August 2021 and applicant's written outline of submissions in support of the settlement approval application. I therefore reject the submission made at the oral hearing by Bidwill's counsel, Dr T Hickie, that his client was caught by surprise that the settlement sum was on the public record. 71 In the circumstances, I am satisfied that non-publication orders should be made over the Settlement Deed, except for the settlement sum of $60,000. Conclusion 72 For all of these reasons, I am satisfied that the Court should approve the Settlement Deed and Settlement Distribution Scheme pursuant to s 33V and 33ZF of the FCA Act. I will also make non-publication orders as discussed above. I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Griffiths. Associate: Dated: 28 October 2021