Kyle-Sailor v Heinke (No 2) [2025] FCA 33

Kyle-Sailor v Heinke (No 2) [2025] FCA 33

The proposed settlement, including the Deed of Settlement and the Settlement Scheme, is fair and reasonable in the interests of group members as a whole under s 33V of the Federal Court of Australia Act 1976 (Cth), given the litigation risks, the adequacy of the compensation, the appropriateness of the funding commission, the costs, the distribution between subclasses, the non-pecuniary relief, and the minor level and basis of objections. The approved distribution model does not unfairly prefer some group members or the lead applicant at the expense of the rest.

Parties
Applicant: Andrea Kyle-Sailor; First Respondent: Alex Heinke; Second Respondent: Nine Entertainment Co. Pty Ltd; Third Respondent: Nine Digital Pty Limited (ACN 077 753 461); Fourth Respondent: Nine Network Australia Pty Ltd (ACN 008 685 407); Funder: BLM (Australia) LLC
Jurisdiction
Australia
Judgment Date
31 January 2025
Procedural Posture
Representative Proceeding (class Action) / Application for Approval of Settlement Under S 33 V of the Federal Court of Australia Act 1976 (cth)
Outcome
Settlement approved. Orders made as proposed by applicant.
Legal Topics
Racial Vilification, Settlement Approval, Distribution of Settlement Funds, Litigation Funding, Damages, Suppression Orders
Discrimination Law Class Actions Human Rights Law Racial Vilification Settlement Approval Distribution of Settlement Funds Litigation Funding Damages +1 more

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Parties

Andrea Kyle-Sailor

Applicant

Alex Heinke

First Respondent

Nine Entertainment Co. Pty Ltd

Second Respondent

Nine Digital Pty Limited (ACN 077 753 461)

Third Respondent

Nine Network Australia Pty Ltd (ACN 008 685 407)

Fourth Respondent

BLM (Australia) LLC

Funder

Procedural Posture

Representative Proceeding (class Action) / Application for Approval of Settlement Under S 33 V of the Federal Court of Australia Act 1976 (cth)

Legal Issues

  1. 1 Whether the proposed settlement is fair and reasonable as between group members and respondents under s 33V of the Federal Court of Australia Act 1976 (Cth)
  2. 2 Whether the distribution scheme is fair and reasonable as between group members, including the approach to higher damages for some
  3. 3 Whether additional compensation to the lead applicant is fair and reasonable

Ratio Decidendi

The proposed settlement, including the Deed of Settlement and the Settlement Scheme, is fair and reasonable in the interests of group members as a whole under s 33V of the Federal Court of Australia Act 1976 (Cth), given the litigation risks, the adequacy of the compensation, the appropriateness of the funding commission, the costs, the distribution between subclasses, the non-pecuniary relief, and the minor level and basis of objections. The approved distribution model does not unfairly prefer some group members or the lead applicant at the expense of the rest.

Court Disposition

Settlement approved. Orders made as proposed by applicant.

Orders

  • Settlement of the proceeding approved pursuant to ss 33V and 33ZF of the Federal Court of Australia Act 1976 (Cth) on the terms set out in the Deed of Settlement, Amendment, and Settlement Scheme, as modified.
  • Administrator appointed and authorised to distribute the Settlement Sum per the Scheme.