Lenthall v Westpac Banking Corporation (No 3) [2021] FCA 1004

Lenthall v Westpac Banking Corporation (No 3) [2021] FCA 1004

The settlement was approved because, having regard to the complexity of the claims, litigation risks, likely delay and the evidence supporting the settlement, it was within the range of a fair and reasonable compromise. The Claims Cap did not prevent approval because further notice and controlled access to Group Member Lists would ensure group members had a meaningful opportunity to register. The Court was satisfied, after reductions and scrutiny by the costs referee and costs assessor, that the costs to be deducted were fair and reasonable. Further notification was within power and an appropriate exercise of discretion, subject to court control of communications and confidentiality...

Jurisdiction
Australia
Judgment Date
09 August 2021
Procedural Posture
Open Class Representative Proceeding; Settlement Approval Application Pursuant to S 33 V of the Federal Court of Australia Act 1976 (cth) / Application for Approval of Settlement Heard on 16 July and 9 August 2021; Settlement Approved and Final Orders Made
Outcome
Settlement approved pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth), with orders for administration, deductions, further notice, confidentiality and eventual dismissal after the administrator's concluding report.
Legal Topics
['settlement Approval Under S 33 V of the Federal Court of Australia Act 1976 (cth)' 'claims Cap in Class Action Settlement' 'reasonableness of Legal Costs and Counsel Fees' 'further Notice to Group Members' 'access to Group Member Contact Information by Settlement Administrator' 'confidentiality and Non Publication Orders']
['representative Proceedings' 'class Actions' 'banking, Finance and Insurance' 'commercial and Corporations' 'civil Procedure'] ['settlement Approval Under S 33 V of the Federal Court of Australia Act 1976 (cth)' 'claims Cap in Class Action Settlement' 'reasonableness of Legal Costs and Counsel Fees' 'further Notice to Group Members' 'access to Group Member Contact Information by Settlement Administrator' 'confidentiality and Non Publication Orders']

Case Brief

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Procedural Posture

Open Class Representative Proceeding; Settlement Approval Application Pursuant to S 33 V of the Federal Court of Australia Act 1976 (cth) / Application for Approval of Settlement Heard on 16 July and 9 August 2021; Settlement Approved and Final Orders Made

Legal Issues

  1. 1 ["Whether the proposed settlement was a fair and reasonable compromise of the applicants' and group members' claims under s 33V of the Federal Court of Australia Act 1976 (Cth)." "Whether the settlement's Claims Cap and registration process undermined the fairness of the settlement." "Whether the applicants' legal costs, disbursements, counsel fees and approval costs were fair and reasonable." 'Whether further notice should be issued to group members informing them of the need to register to participate in the settlement.' 'Whether the Court had power to order further notices and whether doing so was an appropriate exercise of discretion.' 'Whether the Court-appointed administrator should have access to group member lists and be permitted to communicate with group members, subject to protections.']

Ratio Decidendi

The settlement was approved because, having regard to the complexity of the claims, litigation risks, likely delay and the evidence supporting the settlement, it was within the range of a fair and reasonable compromise. The Claims Cap did not prevent approval because further notice and controlled access to Group Member Lists would ensure group members had a meaningful opportunity to register. The Court was satisfied, after reductions and scrutiny by the costs referee and costs assessor, that the costs to be deducted were fair and reasonable. Further notification was within power and an appropriate exercise of discretion, subject to court control of communications and confidentiality...

Court Disposition

Settlement approved pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth), with orders for administration, deductions, further notice, confidentiality and eventual dismissal after the administrator's concluding report.

Orders

  • ['The settlement of the proceeding was approved on the terms of the Deed, related correspondence and Settlement Scheme.' 'The applicants, respondents and Bound Group Members were declared affected and bound by the settlement, excluding those who opted out or were permitted to opt out.' 'Eight identified group...