Federal Court of Australia Tham v Australian Capital Territory [2024] FCA 1508 File number: Judgment of: SNADEN J Date of judgment: 18 December 2024 Date of publication of reasons: 20 December 2024 Catchwords: REPRESENTATIVE PROCEEDING – settlement approval application under s 33V of the Federal Court of Australia Act 1976 (Cth) – whether the proposed settlement is fair and reasonable in the interests of group members – whether orders under pt VAA of the Federal Court of Australia Act 1976 (Cth) are necessary in respect of certain evidence – settlement approved. Legislation: Fair Work Act 2009 (Cth) s 50 Federal Court of Australia Act 1976 (Cth) s 33V Bradshaw v BSA Ltd (No 2) [2022] FCA 1440 Cases cited: Caason Investments Pty Ltd v Cao (No 2) [2018] FCA 527 Ewok Pty Ltd v Wellard Ltd [2024] FCA 296 Pearson v State of Queensland (No 2) [2020] FCA 619 Division: Fair Work Division Registry: Victoria National Practice Area: Number of paragraphs: 30 Date of hearing: 18 December 2024 Counsel for the Applicant: Ms M Szydzik SC with Mr D Murphy Solicitor for the Applicant: Gordon Legal Counsel for the First Respondent: Ms H A Tiplady Solicitor for the First Respondent: ACT Government Solicitor Counsel for the Second Respondent: Mr J Entwisle Solicitor for the Second Respondent: MinterEllison ORDERS VID 705 of 2022 BETWEEN: YING YING THAM Applicant AUSTRALIAN CAPITAL TERRITORY AND: First Respondent CALVARY HEALTH CARE ACT LIMITED (ACN 105 304 989) Second Respondent order made by: SNADEN J DATE OF ORDER: 18 DECEMBER 2024 THE COURT NOTES THAT: 1. By operation of order 14 below, the applicant is to file a redacted version of the affidavit affirmed herein by Mr Andrew Grech on 4 December 2024; and 2. Access (including public access) to that version of that affidavit will not be affected by the operation of order 13 below. THE COURT ORDERS THAT: Settlement approval 1. Pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth) (the Act), the settlement of this proceeding be approved on the terms set out in: 1. the Deed of Settlement between the Applicant, the Respondents and Gordon Legal annexed as 'AG-1' to the affidavit of Andrew Grech dated 10 October 2024 (Deed); and 2. the Settlement Scheme (Scheme), in the form set out in Annexure A of the Deed. 2. Pursuant to s 33ZB of the Act the persons affected and bound by the settlement of the proceeding are: 1. the Applicant; 2. the Respondents; 3. Gordon Legal; and 4. the group members who did not file an opt out notice in accordance with s 33J of the Act or who did file such a notice and have been reinstated as group members pursuant to the process established by orders 12 to 14 of the Court's orders dated 15 October 2024. 3. Pursuant to s 33ZF of the Act, the parties each have leave to apply to the Court for orders in respect of any issue arising in relation to the administration of the Scheme. Appointment of Administrators 1. Pursuant to ss 33V and 33ZF of the Act, Gordon Legal and Hayden Stephens and Associates be jointly appointed as the Scheme Administrators, to act in accordance with the Scheme and have the powers and immunities contemplated by the Scheme. Payment of sums under the Deed 1. Pursuant to ss 33V(2) and 33ZF of the Act: 1. by 1 July 2025, the First Respondent pay the sum of $25,140,000 into an interest-bearing bank account nominated by the Applicant's solicitors (the Account); and 2. by 6 February 2025, the Second Respondent pay the sum of $200,000 into the Account, as payments in accordance with clause 5.6 of the Deed in respect of the Settlement Sum (as defined at clause 5.1(a) of the Deed). 1. Pursuant to ss 33V(2) and 33ZF of the Act, the First Respondent pay the sum of: 1. by 6 February 2025, $2,600,000; and 2. by 1 July 2025, $260,000, into the Account as a payment in accordance with clause 5.8 of the Deed in respect of the Legal Costs Sum (as defined at clause 5.1(b) of the Deed). 1. Pursuant to ss 33V(2) and 33ZF of the Act, by 1 July 2025 the First Respondent pay the sum of $3,300,000 into the Account as a payment in accordance with clause 5.9 of the Deed in respect of the Claims Assessment and Settlement Scheme Administration Costs Sum (as defined at clause 5.1(c) of the Deed). Approval of costs pursuant to the Deed 1. Pursuant to ss 33V(2) and 33ZF of the Act, the costs of the Applicant's solicitors payable under the Deed pursuant to clause 5.1(b) of the Deed in respect of the conduct of the proceeding on behalf of the Applicant and group members be approved in the amount of $2,860,000. 2. Pursuant to ss 33V(2) and 33ZF of the Act, the costs of the Scheme Administrator in respect of the implementation and operation of the claims assessment and settlement scheme process under the Deed pursuant to clause 5.1(c) of the Deed be approved in the amount of $3,300,000. Approval of amount to be deducted from Settlement Sum pursuant to the Deed 1. Pursuant to ss 33V(2) and 33ZF of the Act, an amount of $20,000 be deducted from the Settlement Sum to reimburse the Applicant for her time and out-of-pocket expenses in performing her role as representative of group members in the conduct of the proceeding. Dismissal of the proceeding 1. Pursuant to ss 22, 23 or 33ZF of the Act, and/or r 1.32 of the Federal Court Rules 2011 and/or the Court's inherent jurisdiction and upon the date that the Scheme Administrators file a confidential report with the Court in accordance with clause 9.5 of the Deed, these proceedings be dismissed (without the need for any further order). Costs 1. There be no order as to costs in the proceeding. Non-publication orders 1. Pursuant to s 37AF(1) of the Act, until the conclusion of the period identified in the table below, there be no publication or other disclosure of the following sections of the affidavit of Andrew Grech dated 4 December 2024, save to the extent identified in the table below, on the ground that it is necessary to prevent prejudice to the proper administration of justice under s 37AG(1)(a) of the Act: PARAGRAPH / ANNEXURE TEXT PERIOD ACCESSIBLE BY 64 The value following the words "… calculated a loss of…" Until the expiry of any appeal period following approval of settlement The Court and the Respondents [grey highlight] 71 The value following the words "… loss of the class was…" Until the expiry of any appeal period following approval of settlement The Court and the Respondents [grey highlight] 77 The values following the words "… 30 November 2022, being…" Until the expiry of any appeal period following approval of settlement The Court and the Respondents [grey highlight] 79 In the chapeau, the values following the words "… which affected that range of…" Until the expiry of any appeal period following approval of settlement The Court and the Respondents [grey highlight] 83 All words following the sentence ending "… since 1 December 2022" Until the expiry of any appeal period following approval of settlement The Court only [yellow highlight] 84 All words in the first sentence following the words "… rather than 4.8 hours per week…" Until the expiry of any appeal period following approval of settlement The Court only [yellow highlight] 85 The value following the words "… in a further…" and the values following the words "… the range sat at…" Until the expiry of any appeal period following approval of settlement The Court and the Respondents [grey highlight] 87 All words following the first sentence Until the expiry of any appeal period following approval of settlement The Court only [yellow highlight] 88 All words in the second sentence prior to "… I determined that…" Until the expiry of any appeal period following approval of settlement The Court only [yellow highlight] 89 The value following the words "… the range down approximately…" and the values following the words "… the range to…" Until the expiry of any appeal period following approval of settlement The Court and the Respondents [grey highlight] 92 The value following the words "… range was reduced by…" and the values following the words "… reduced the range to…" Until the expiry of any appeal period following approval of settlement The Court and the Respondents [grey highlight] 93 Whole paragraph Until the expiry of any appeal period following approval of settlement The Court only [yellow highlight] 94 Whole paragraph (a), (b), (c), (d), (e), (f) and (i), 10 years or until further order The Court only [yellow highlight] (g) and (h) until the expiry of any appeal period following approval of settlement 95 Whole paragraph Until the expiry of any appeal period following approval of settlement The Court only [yellow highlight] 96 Whole paragraph Until the expiry of any appeal period following approval of settlement The Court only [yellow highlight] 97 All words in the second sentence Until the expiry of any appeal period following approval of settlement The Court only [yellow highlight] 117 – 118 Whole paragraph Until the expiry of any appeal period following approval of settlement The Court only [yellow highlight] 159(b) The value following the words "…for this work were…" 5 years or until further order The Court only [yellow highlight] 161(a)-(d) The values in each sub-paragraph 5 years or until further order The Court only [yellow highlight] Counsel Opinion dated 4 December 2024 (AG-5) Whole document 10 years or until further order The Court only [yellow highlight] Letter of instruction to Ms Rosati (AG-6) Whole document 5 years or until further order The Court only [yellow highlight] Expert report of Ms Rosati dated 2 December 2024 (AG-7) Whole document 5 years or until further order The Court only [yellow highlight] Gordon Legal's and Hayden Stephens & Associates' estimates of acting as Scheme Administrators (AG-8) Whole document Until the expiry of any appeal period following approval of settlement The Court only [yellow highlight] The powerpoint presentation to the respondents (AG-9) Whole document Until the expiry of any appeal period following approval of settlement The Court and the Respondents [grey highlight] The model (AG-10) Whole document Until the expiry of any appeal period following approval of settlement The Court and the Respondents [grey highlight] The legal costs agreement and disclosure statement signed by Dr Tham on 1 August 2022 (AG-13) Page 13 – all values in the second and third columns 5 years or until further order The Court only [yellow highlight] Page 16 (table at paragraph 15) – all values in the second and third columns 1. By the close of business of Friday, 20 December 2024, the applicant file a version of the affidavit affirmed by Mr Andrew Grech on 4 December 2024 that is redacted in a way that conceals the parts of it that are the subject of order 13 above. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT SNADEN J: 1. By an interlocutory application dated 21 November 2024, the applicant moved for orders under pt IVA of the Federal Court of Australia Act 1976 (Cth) (the "FCA Act") by way of disposition of her substantive originating application. Those orders are sought consequent upon the parties' reaching of an accord as to how the matter should resolve. The application was heard on Wednesday, 18 December 2024. Satisfied that it was appropriate to do so, I immediately thereafter made orders substantially in the form proposed for that purpose by the applicant (to which neither respondent objected). I undertook to publish my reasons for doing so and I discharge that undertaking by what follows. For ease of reading, I shall cast these reasons in the present tense. 2. The application is supported by two affidavits, both affirmed by the applicant's solicitor, Mr Andrew Alexander Grech; the first dated 10 October 2024 and the second dated 4 December 2024. The latter of those has not been served in its unredacted form and is the subject of an application under pt VAA of the FCA Act, to the particulars of which I shall shortly return. 3. The substantive suit is a representative proceeding that the applicant, Dr Tham, brings on her own behalf and on behalf of current or former employees who were engaged by the first or second respondents (respectively, the "Territory" and "Calvary") as "junior medical officers" (or "JMOs") pursuant to the terms of three enterprise agreements that operated between 2013 and 2022. Those instruments were made and had force pursuant to the Fair Work Act 2009 (Cth) (the "FW Act"); and each made provision for overtime rates of pay. By her action, Dr Tham alleges that the Territory and Calvary breached those provisions—and, thereby, contravened s 50 of the FW Act—by failing to pay to Dr Tham and other JMOs overtime rates of pay in respect of un-rostered overtime work, the performance of which they required or requested. 4. Following mediation of their dispute, the parties executed a deed of settlement on 17 September 2024 (the "Deed"), whereby they agreed terms upon which they proposed, subject to receipt of the court's approval, that the substantive action should resolve. The key aspects of that settlement (beyond what might conveniently be described as boilerplate releases, indemnities and procedural attendances) are as follows, namely: 5. the respondents are to pay into an interest-bearing "settlement distribution account" sums totalling $31,500,000.00; 6. that total amount is then to be allocated as follows, namely: 1. $25,340,000.00 (the "Settlement Sum") is to be paid to group members who meet the criteria identified within the Deed and in accordance with the distribution scheme that it contemplates (the "Settlement Scheme"); 2. $2,860,000.00 is to be paid in respect of the applicant's legal costs and disbursements incurred in the course of the proceeding; and 3. $3,300,000 is reserved for the costs of administering the distribution of funds to group members in accordance with the Settlement Scheme (which is outlined by the terms of the Deed). 7. The account into which the sums are to be payable will be controlled by the administrators of the proposed Settlement Scheme, namely the law practices, Gordon Legal and Hayden Stephens & Associates. The Settlement Scheme provides for a detailed process regulating the assessment, review and payment of funds in respect of claims by individual group members. In the event that there remain funds not distributed at the conclusion of the scheme, the balance is to be returned to the Territory. 8. On 15 October 2024, orders were made granting Dr Tham leave to file an amended pleading and requiring that group members receive information of various kinds about the proposed settlement of the proceeding (including about their right to participate in or object to it). Those orders have been complied with and the position at the present juncture is that: 9. 1,614 group members have registered with Dr Tham's solicitors their interest in participating in the Settlement Scheme; and 10. none has lodged any objection to the settlement. 11. The parties' settlement of the action requires the court's approval before it can take effect. In that regard, s 33V of the FCA Act provides as follows: 33V Settlement and discontinuance—representative proceeding (1) A representative proceeding may not be settled or discontinued without the approval of the Court. (2) If the Court gives such an approval, it may make such orders as are just with respect to the distribution of any money paid under a settlement or paid into the Court. 1. In her helpful written submissions filed in support of her application for approval, Dr Tham contended as follows (references omitted, emphases original): 21. The principles to be applied are well established and involve two key considerations – namely, whether the proposed settlement: (a) is fair and reasonable, having regard to the claims made on behalf of the class members who will be bound by the settlement; and (b) has been undertaken in the interests of group members as a whole and not just in the interests of the applicant and the respondents. 22. The central question for the Court is whether the proposed settlement is fair and reasonable having regard to the claims made by group members who will be bound by it. 23. In considering an application for approval, the Court is concerned to "identify the risks involved in the litigation, to weigh them, and to seek to determine the likely outcome of the proceeding, and compare it with the settlement". However, as Beach J explained in A v Schulberg [2014] VSC 258 at [12]: The job of this Court is to determine whether or not the settlement is fair between the parties and between the plaintiff and group members. While, in making that assessment, it is necessary to form a view as to the correlation between the amount individual group members will recover under the settlement distribution scheme and the amount they might recover after trial, necessarily any such comparison can only be performed in a broad manner. 24. There will rarely be one unique outcome which should be regarded as the only fair and reasonable one. So long as the proposed settlement falls within the range of fair and reasonable outcomes, taking everything into account, it will qualify for approval. The Court's assessment as to whether the applicant and group members are likely to succeed in their claims at trial, and as to the quantum of the damages they may obtain if they do succeed, involves the exercise of judgement based on imperfect knowledge. Further, as Murphy J said in Kelly v Willmott Forests Ltd (in liq) (No 4) [2016] FCA 323 at [74]: It is established that the Court should not second-guess the applicant's lawyers as to whether the settlement ought to have been accepted, or to proceed as if it knows more about the actual risks of the litigation than those lawyers. The Court takes the applicant's lawyers as it finds them, recognising that different applicants and different lawyers will have different appetites for risk. The question is whether the proposed settlement is within the range of reasonable outcomes, not whether it is the best outcome which the Court considers might have been won by better bargaining. 25. In Williams v FAI Home Security Pty Ltd (No 4) [2000] FCA 1925, Goldberg J enumerated a list of nine factors to which the Court may have regard when assessing the reasonableness of the proposed settlement. These factors, with some modification, have been set out at paragraph 15.5 of the Court's Class Actions Practice Note (GPN-CA) and are: (a) the complexity and likely duration of the litigation; (b) the reaction of the group to the settlement; (c) the stage of the proceedings; (d) the risks of establishing liability; (e) the risks of establishing loss or damage; (f) the risks of maintaining a group proceeding; (g) the ability of the defendants to withstand a greater judgment; (h) the range of reasonableness of the settlement in light of the best recovery; (i) the range of reasonableness of the settlement in light of all the attendant risks of litigation; and (j) the terms of any advice received from counsel and/or from any independent expert in relation to the issues which arise in the proceeding. 26. These factors are not intended as an exhaustive checklist of the matters to which the Court will have regard, but rather a list of factors that may provide useful guidance to the Court's task in identifying and assessing the specific problems and issues relevant to the litigation at hand. In addition to these matters, the Court is concerned with important economic considerations, including how the settlement sum is proposed to be distributed between group members. The Court's discretion in approving a proposed settlement is broad: "its exercise is only limited by the necessity that [the discretion] be exercised judicially, having regard to the particular facts of the case." 27. As to the final criteria in paragraph 15.5 of the Practice Note, it is not the Court's function to second guess the applicant's advisors as to the question of whether the applicant and group members ought to accept an offer of settlement. The advice of counsel (particularly counsel retained in the matter for some time and/or appearing in the matter) is likely to be given some weight. Of course, it is not determinative, and the Court "must reach independent satisfaction as to the fairness of the proposed settlement" beyond simply assessing the reasonableness of the opinions expressed by the applicant's lawyers. 28. The applicant seeks an order providing that the applicant and those group members who did not opt out of the proceeding are bound by the settlement (if approved) pursuant to s 33ZB of the [FCA Act]. 29. Section 33ZB provides that a "judgment" in a group proceeding "must describe or otherwise identify the group members who will be affected by it" and "binds all such persons other than any person who has opted out of the proceeding under section 33J." "Judgment" is defined in section 4 as including "order". In Dyczynski v Gibson, Lee J stated that "[o]rders made settling a class action under s 33V should, in order to bind group members in relation to the individual claims, be accompanied by s 33ZB orders." 1. Presently, there is no controversy about any of those observations and I gratefully adopt them as though my own. 2. In considering whether to grant approval under s 33V(1) of the FCA Act, the court has been provided with a confidential opinion of counsel as to whether the settlement proposed by means of the Deed is fair, reasonable, and in the interests of group members as a whole. I have read that opinion carefully and, with respect, can find no fault with it. 3. I have no hesitation in accepting that the settlement proposed by means of the Deed is one that is apt to be described as fair and reasonable, and ought to attract the court's approval under s 33V(1) of the FCA Act. In saying so, I am conscious of the supervisory role that the court assumes for the protection of group members, and that the granting of approval will extinguish their rights in the substantive action. All the same, I have had regard to the nature of the substantive proceeding and what I perceive to be the areas of dispute that it discloses as between them. 4. Chief amongst the latter concerns proof of the un-rostered overtime that group members are alleged to have been requested or required to work. Principally, Dr Tham alleges that those requests or requirements arose implicitly in consequence of a "system of work" within which the shifts that JMOs were rostered to work were of durations that were insufficient to accommodate the performance of their required duties. The Territory and Calvary are said to have known about those systems; and it is as a function of that knowledge that the relevant overtime requests or requirements are said implicitly to have arisen. 5. It is, of course, not for the court now to assess—much less is it able to assess—the veracity of that claim, whether generally or in relation to individual group members. It suffices, nonetheless, to say that, by its nature, the proof of that contention is an endeavour not free of difficulty, as the parties have candidly recognised. 6. The evidence in support of the present application makes clear that the Settlement Sum is appropriate, in the sense that its calculation bespeaks a logical appreciation of the quantum of the underpayments that might be recoverable if the matter were to progress to trial, the risks that attend that recovery, and the time and effort that the parties would need to expend to obtain or resist it. 7. Similarly, the Settlement Scheme is comprehensive insofar as concerns the processes by which it contemplates that individual claims will be received, assessed, reviewed and paid. I consider those processes to be, in equal measure, clear and appropriate; and it is unnecessary that I should rehearse them in detail. It suffices to note that the scheme envisages sensible registration, eligibility, assessment and distribution phases, each of which strikes as eminently, if not obviously, appropriate for a scheme of its nature. 8. One feature of the Settlement Scheme is that it contemplates that claimants will receive amounts that correspond, as best as possible, to the amounts of un-rostered overtime that they worked as required or requested. Necessarily, some claimants will receive more from the Settlement Sum than others. Amounts claimed and paid are to be the subject of assessment by the scheme administrators (and those assessments are to be amenable to independent review) in accordance with what the Deed identifies as the Claims Assessment Principles. Again, it is unnecessary that I should rehearse those principles in any detail: it suffices to note that they have been identified, and that they present as sensible measures to ensure just and efficient distributions from the Settlement Sum: see, in that regard, Bradshaw v BSA Ltd (No 2) [2022] FCA 1440, [91] (Bromberg J); Pearson v State of Queensland (No 2) [2020] FCA 619, [197], [223] (Murphy J). 9. I should say something about the proposed administrators of the Settlement Scheme. There is no doubt that the firms proposed in that regard are experienced and capable; and, again, I do not consider it necessary to say much beyond that. Their institution as administrators is orthodox and my assessment as to whether the settlement proposed by the Deed ought to be approved is informed by that reality. 10. Insofar as concerns the amounts reserved by the Deed for costs ($2,860,000.00) and the administration of the Settlement Scheme ($3,300,000.00), reliance was placed upon an expert report prepared by a solicitor who specialises in legal costing services, Ms Kerrie-Ann Rosati. A copy of Ms Rosati's report was annexed to Mr Grech's 4 December 2024 affidavit. I have considered it and note, for summary purposes, the following, namely that: 11. the amount reserved for costs is a little more than 10% of the Settlement Sum, which is (or appears to be) below the equivalent amount applicable, on average, to the settlement of other representative proceedings in this court; 12. the amount reserved for the cost of administering the Settlement Scheme is slightly below what Ms Rosati considers is a reasonable estimate for the work that it is likely to entail (calculated upon the necessarily limited information currently at hand but, in any event, by reference to what strike as unremarkable hourly charge-out rates for suitably-experienced fee earners). 13. Again, there is nothing in the evidential landscape concerning costs that serves to stigmatise the settlement that is envisaged by the Deed as anything other than fair, reasonable and consistent with the interests of group members. 14. The same should be said about the amount—$20,000.00—that is proposed to reimburse Dr Tham for her time and out-of-pocket expenses in performing her role as the group members' representative. That figure is eminently defensible, at least for the following reasons, namely: 15. it is below what the evidence suggests is the average amount that representative applicants typically receive by way of reimbursement for their efforts; 16. Dr Tham appears on the evidence to have made a significant contribution to the prosecution of the matter for the benefit of group members; and 17. in doing so, Dr Tham can be understood to have assumed at least some reputational risk, howsoever difficult it might be to quantify. 18. Additionally, there has been no objection to what has been proposed by way of reimbursement (which, I note, will be allocated from the Settlement Sum). As with other aspects of the settlement, I have no hesitation in regarding as fair and reasonable the amount that is proposed to be paid to Dr Tham by way of reimbursement. I do not consider that any more need be said on that front. 19. The settlement envisaged by the Deed should and will be approved. Likewise, I will make ancillary orders regarding the appointment of the Settlement Scheme administrators and, more generally, for the administration of that scheme consistently with the provisions of the Deed. 20. I will also (and as requested) make orders under pt VAA of the FCA Act regarding what the applicant has held out as "confidential" aspects of the evidence that she has put before the court. Orders of that nature are commonplace in representative proceedings such as this one. That, of course, is not reason in itself to make them; and, in doing so, I am conscious of the high hurdle that must be cleared: as to which, see Caason Investments Pty Ltd v Cao (No 2) [2018] FCA 527, [8] (Murphy J). 21. Presently—as in many (perhaps most) representative proceedings—that hurdle can be cleared and I am satisfied that it is necessary to prevent prejudice to the proper administration of justice for orders to be made. Broadly, the orders that have been proposed can be split into two categories: those that are necessary to protect Dr Tham's position and that of the group members in the event that the settlement is not approved; and those that are necessary because, without them, the court might not, in the future, be treated to the same level of professional assistance by the lawyers whose confidential opinions are sought on various matters relevant to its discretion. 22. As to the former category (which is the bulk of the material in respect of which the application is made), relief under pt VAA of the FCA Act is proposed only until the expiry of the period that is prescribed by the Federal Court Rules for the commencement of any appeal from this judgment. The material that Dr Tham hopes to stop from being disclosed concerns matters that have informed her agreement to settle the action on the terms of the Deed. In the event that my approval of the settlement that is enshrined in the Deed were to be overturned on appeal, Dr Tham's ability to progress the substantive matter consistently with her interests (and those of the group members) would very clearly be imperilled. At least in that sense is relief under pt VAA of the FCA Act necessary; and, in my view, quite obviously so. 23. The second category covers the "confidential" advice of counsel, evidence about the way in which Dr Tham's solicitors fixed upon an acceptable settlement figure (which includes evidence about costs estimates and instructions that were given to them), and other material relating to legal costs, including the report that Ms Rosati prepared and other documents ancillary to it. 24. Again, I am satisfied that relief under pt VAA of the FCA Act is appropriate—indeed, necessary—in respect of that evidence. In Ewok Pty Ltd v Wellard Ltd [2024] FCA 296 ("Wellard"), Button J observed (at [103]): In settlement approval proceedings, the Court is much assisted by the responsible counsel and solicitors expressing their views on the proceeding in frank and candid terms. It would be inimical to the interests of the administration of justice for counsel and solicitors providing those opinions to be reticent in what they say, lest their opinions be disseminated to the world at large. In addition, orders in respect of the confidential opinions are warranted on the basis that they disclose information that is the subject of legal professional privilege claims. 1. I respectfully agree. Equivalent observations may be made of Mr Grech's evidence about the costs arrangements and estimates that were struck with or provided to his client. Indeed, Button J in Wellard did so (at [104]). 2. It was agreed at the hearing of the application (and, thereupon, an order was made to require) that a version of the affidavit affirmed by Mr Grech on 4 December 2024 should be filed with redactions sufficient to conceal the matters that are to be the subject of relief under pt VAA of the FCA Act. Public access to that version will not be constrained. 3. The orders that Dr Tham otherwise proposes to dispose of the application are orthodox and, with minimal editing, are appropriate to that end. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden. Associate: Dated: 20 December 2024