R&B Investments Pty Ltd (Trustee) v Blue Sky Alternative Investments Limited (Administrators Appointed) (in liq) (Reserved Question) [2023] FCA 1499

R&B Investments Pty Ltd (Trustee) v Blue Sky Alternative Investments Limited (Administrators Appointed) (in liq) (Reserved Question) [2023] FCA 1499

Because the second, third and fourth respondents maintained a real controversy that the Court lacked power to make a solicitors' common fund order, and because the issue had significant consequences for funding, opt out notice content, possible transfer to the Supreme Court of Victoria, and broader uncertainty in class actions, it was appropriate to reserve the stated question to the Full Court under s 25(6) of the Federal Court of Australia Act 1976 (Cth).

Jurisdiction
Australia
Judgment Date
24 November 2023
Procedural Posture
Open Class Securities Class Action; Representative Proceeding / Case Management; Application for Approval of Opt Out Notices; Reserved Question Referred to the Full Court Pursuant to S 25(6) of the Federal Court of Australia Act 1976 (cth)
Outcome
Question reserved to the Full Court and procedural case management orders made.
Legal Topics
["solicitors' Common Fund Order" 'common Fund Order' 'opt Out Notices' 'reserved Question to Full Court' 'group Costs Order' 'cross Vesting Foreshadowed' 'pleadings' 'discovery' 'security for Costs']
['representative Proceedings' 'securities Class Actions' 'corporations and Corporate Insolvency' 'civil Procedure'] ["solicitors' Common Fund Order" 'common Fund Order' 'opt Out Notices' 'reserved Question to Full Court' 'group Costs Order' 'cross Vesting Foreshadowed' 'pleadings' 'discovery' 'security for Costs']

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Procedural Posture

Open Class Securities Class Action; Representative Proceeding / Case Management; Application for Approval of Opt Out Notices; Reserved Question Referred to the Full Court Pursuant to S 25(6) of the Federal Court of Australia Act 1976 (cth)

Legal Issues

  1. 1 ['Whether it is within power under Pt IVA of the Federal Court of Australia Act 1976 (Cth), or otherwise, for the Court upon settlement or judgment of a representative proceeding to make a common fund order providing for distribution of funds or other property to a solicitor otherwise than as payment for costs and disbursements incurred in conducting the proceeding.' "Whether the controversy about the Court's power to make a solicitors' common fund order should be reserved to the Full Court under s 25(6) of the Federal Court of Australia Act 1976 (Cth)." 'Whether group members should receive clearer information about proposed deductions from any settlement or judgment sum before deciding whether to opt out.' "Whether, if the Court lacks power to make a solicitors' common fund order, the applicants may seek to cross-vest the proceeding to the Supreme Court of Victoria to seek a Group Costs Order."]

Ratio Decidendi

Because the second, third and fourth respondents maintained a real controversy that the Court lacked power to make a solicitors' common fund order, and because the issue had significant consequences for funding, opt out notice content, possible transfer to the Supreme Court of Victoria, and broader uncertainty in class actions, it was appropriate to reserve the stated question to the Full Court under s 25(6) of the Federal Court of Australia Act 1976 (Cth).

Court Disposition

Question reserved to the Full Court and procedural case management orders made.

Orders

  • ['The following question be reserved to the Full Court pursuant to s 25(6) of the Federal Court of Australia Act 1976 (Cth): Is it a licit exercise of power, pursuant to statutory powers conferred within Pt IVA of the Federal Court of Australia Act 1976 (Cth), or otherwise, for the Court, upon the settlement or...