Supreme Court New South Wales Medium Neutral Citation: Younger v Westpac Banking Corporation [2016] NSWSC 1905 Hearing dates: 9 December 2016 Date of orders: 09 December 2016 Decision date: 09 December 2016 Jurisdiction: Common Law Before: Garling J Decision: (1) Order pursuant to s 174(2) of the Civil Procedure Act 2005 that the plaintiff have leave to withdraw from the proceedings as a representative party. (2) Order pursuant to s 166(1) of the Civil Procedure Act 2005 that the proceedings no longer continue under Part 10 of the Civil Procedure Act 2005. (3) Note that the court has previously ordered that there be judgment for the plaintiff against the first defendant in the sum specified in paragraph 4(B) of the Notice of Motion filed 1 November 2016 and that other terms of an agreement between the plaintiff and the defendants are to be given effect to. (4) Order that the plaintiff's proceedings which are now not representative proceedings be otherwise dismissed (5) With respect to the Notice of Motion filed 1 November 2016, order the defendant to pay the plaintiff's costs of that motion except for the costs of and associated with the preparation for and hearing of the proceedings on 9 December 2016 in respect of which each party is to pay his and its own costs Catchwords: PRACTICE AND PROCEDURE – civil – application by plaintiff to withdraw from representative proceedings following settlement of the plaintiff's claim – where no other group member has volunteered to become plaintiff – whether it is appropriate to dismiss the proceedings – whether the proceedings should continue as representative proceedings Legislation Cited: Civil Procedure Act 2005 Cases Cited: Not Applicable Texts Cited: Not Applicable Category: Procedural and other rulings Parties: Neil Younger (P) Westpac Banking Corporation (D1) Asgard Wealth Solutions Ltd (D2) Representation: Counsel: D R Pritchard SC (P) E Holmes (D1, D2) Solicitors: Gillis Delaney Lawyers (P) Allens, Solicitors (D1, D2) File Number(s): 2014/335469 Publication restriction: Not applicable ex tempore Judgment 1. Pursuant to Part 10 of the Civil Procedure Act 2005, proceedings were commenced in 2014 by a number of individuals as plaintiffs on behalf of themselves and a group, which can be broadly defined as former employees of St George Banking Corporation and Asgard Wealth Solutions Limited ("the group"). A claim was made that the defendants had failed to pay to the group members as promised, various bonus payments which related to the profitability and/or the share price of the St George Banking Corporation. 2. After the time for payment of the bonuses had passed, the St George Banking Corporation was taken over by Westpac Banking Corporation. Accordingly, Westpac Banking Corporation is the defendant in these proceedings together with Asgard Wealth Solutions Limited. 3. The group was ascertainable and limited in numbers. The Court on previous occasions has had put before it the names of each of the members of the group and details which would have enabled a calculation to be made of the moneys which, if the plaintiff was correct in the claim which he made, ought to have been paid to the group. It is fair to say that if this proceeding had not been commenced as a representative proceeding, the individual claims would largely have fallen within the monetary limits of either the Local Court or the District Court. 4. Since the commencement of the proceedings, attempts have been made to resolve various of the individual claims and, for reasons which have previously been expressed, a date fixed for the final hearing of the matter was vacated. 5. In September 2016, the defendants made by way of compromise an offer of settlement to the named plaintiff, Mr Neil Younger. Mr Younger accepted the offer on the terms proffered but was required to make application by Notice of Motion for approval of that settlement. 6. On 18 November 2016, the Court approved the settlement of Mr Younger's claim which involved the entry of judgment in his favour in the sum contained in the Offer of Compromise together with a payment of interest and a payment of costs. The order for costs was expressed to be that the first defendant was to pay the plaintiff's costs up until 29 September 2016 as agreed or assessed. 29 September 2016 was the date of the Offer of Compromise. At that time I was not satisfied that the remaining 12 members of the group had been properly or appropriately notified of Mr Younger's desire to withdraw as the named plaintiff in the proceedings which he was conducting on behalf of the remaining members of the group. 7. By letter dated 24 November 2016, the solicitor for Mr Younger notified each member of the group individually of the circumstances in which Mr Younger had resolved his claim and his application for leave to withdraw as the plaintiff. 8. Each group member was informed that the proceedings had been adjourned until today, when Mr Younger's application would be finally dealt with. They were informed, in clear terms, that if the Court granted leave to Mr Younger to withdraw as plaintiff, in order for the proceedings to continue a group member would need to apply to be substituted as the representative plaintiff. They were also warned, in clear terms, that if no group member made an application to be substituted as plaintiff, the proceedings may come to an end and they may lose all their rights including by reason of the expiry of the applicable limitation period. 9. Similar but not identical information had been provided a few weeks earlier by the solicitor for Mr Younger. 10. Today Mr Younger applies by counsel for orders, pursuant to s 174(2) of the Civil Procedure Act 2005, that he, as the plaintiff, have leave to withdraw from the proceedings as a representative party and that the proceedings be dismissed – although he seeks what is in effect a stay of the order for dismissal until 1 February 2017. 11. He seeks further orders including an order for costs, to which it will be necessary to return. 12. I am informed that the present proceedings were commenced a short time before the limitation period for claims against the defendant was due to expire. By reason of the commencement of these proceedings, time does not run with respect to a limitation period whilst ever these proceedings are on foot or any claim of any group member, so long as they remain a member of the group and do not opt out of the proceedings. Accordingly, if an individual group member wishes to commence proceedings on their own account there would be a time available for them to do so, although that might be quite short. 13. If any of the remaining group members chooses to commence proceedings, it is a matter entirely for the defendant as to whether they would choose to plead the expiration of the limitation period. That is a matter for them to decide. 14. The question which is centrally posed for decision this afternoon is whether, if I were to grant the plaintiff leave to withdraw, I should order on the one hand of my own motion that the proceedings no longer continue under Part 10 with the consequence that the currently filed proceedings would be limited to a claim by Mr Younger himself, which claim has been fully settled, and to make the appropriate orders disposing of that claim; or whether I should form the view in light of the fact that there has been no appearance by any of the group members this afternoon that I should simply dismiss the proceedings. 15. The nature of the conduct of these proceedings has been such that it is entirely possible that until the recent notifications sent by the solicitor for the plaintiff to the remaining group members, they may have had little or no knowledge of the existence of the proceedings, what stage they have reached, what their rights were or what was likely to happen to any potential claim which they might have. 16. It seems to me that if I was to dismiss these proceedings whilst they remain as representative proceedings, I may unknowingly be doing a real injustice to those remaining group members. 17. On the other hand, if the individual group members are left to decide whether they will or will not pursue claims, and the defendants are then left to decide (if a claim is made) whether their client wishes to rely upon the expiration of the limitation period, that will be a matter for the individual parties to determine having regard to the circumstances of the individual case. There may be reasons, for example, as to why the limitation period has not expired. I simply do not know. 18. In the circumstances of these claims, where a bundle of small claims have been grouped together pursuant to Part 10, there is no good reason why leave should not be granted to the plaintiff to withdraw from the proceedings as a representative party as permitted by s 174(2) of the Civil Procedure Act. The only issue becomes what to do with the balance of the proceedings when no one else has volunteered to become the plaintiff. 19. In my view, the course which most particularly accords with the interests of justice is to make an order pursuant to s 166(1) of the Civil Procedure Act that the proceedings no longer continue under Part 10 of that Act. 20. Because I am satisfied that it is in the interests of justice that such an order should be made, and in light of all of the matters to which I have referred, by reason of the grant of leave made to Mr Younger to withdraw as plaintiff, the representative party is no longer able to adequately represent the interests of group members and it is otherwise inappropriate that the claims be pursued by means of representative proceedings. Accordingly, I will make the following orders: 1. Order pursuant to s 174(2) of the Civil Procedure Act 2005 that the plaintiff have leave to withdraw from the proceedings as a representative party; 2. Order pursuant to s 166(1) of the Civil Procedure Act 2005 that the proceedings no longer continue under Part 10 of the Civil Procedure Act 2005; and 3. Note that the court has previously ordered that there be judgment for the plaintiff against the first defendant in the sum specified in paragraph 4(B) of the Notice of Motion filed 1 November 2016 and that other terms of an agreement between the plaintiff and the defendants are to be given effect to. 1. In light of that, and for more abundant caution, I order that the plaintiff's proceedings which are now not representative proceedings be otherwise dismissed. 2. The plaintiff has made a claim for an order that the defendants should pay his costs incidental to the Notice of Motion filed 1 November 2016 as agreed or assessed. 3. The costs of that Notice of Notion did not form part of the agreement to resolve the plaintiff's claim. 4. The defendant opposes an order of that kind, pointing out that, at the least, today's appearance has been occasioned not through any fault on their part and that the orders which were agreed upon for costs adequately catered for the plaintiff's legal costs. 5. The defendant submits that a proper order ought be that each party be ordered to pay their own costs of the Notice of Motion. 6. The settlement entered into between the plaintiff and the defendants required the approval of this Court pursuant to s 173 of the Civil Procedure Act. That is because the plaintiff is the representative party. That is an ordinary consequence of the resolution by a plaintiff of proceedings under Part 10. As well, the plaintiff needed leave to withdraw from being the nominated plaintiff in the proceedings. 7. In my view, the Notice of Motion of 1 December 2016 seeking orders approving the settlement and permitting the plaintiff to withdraw as the representative party was an ordinary incident of the proceedings as a whole. I can see no reason why, given that the proceedings have been resolved substantially in favour of the plaintiff, the defendant should not pay the costs of the Notice of Motion of 1 November 2016. 8. However, it would be unfair for the defendants to be required to pay more than was reasonable. In my view, today's appearance was not a reasonable consequence of the Motion to seek leave to withdraw but was rather occasioned because of inadequate preparation by the plaintiff and his legal advisors for the orders which were sought on the previous occasion. 9. Accordingly, with respect to the Notice of Motion filed 1 November 2016, I order the defendant to pay the plaintiff's costs of that Motion except for the costs of and associated with the preparation for and hearing of the proceedings on 9 December 2016 in respect of which each party is to pay his and its own costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 December 2016