Earglow Pty Ltd v Newcrest Mining Limited [2016] FCA 1433

Earglow Pty Ltd v Newcrest Mining Limited [2016] FCA 1433

The proposed class action settlement is fair and reasonable in the interests of class members under s 33V. The Court has power to approve the settlement and make orders reducing an excessive litigation funding commission, but in this case, the agreed funding commission rates between 26% and 30% are fair and reasonable, as is the Distribution Scheme and all proposed deductions. Objections from unregistered class members do not warrant refusal of approval; their position was adequately protected through notice, and the scheme’s exclusions are fair given the need for finality and settlement viability.

Jurisdiction
Australia
Judgment Date
28 November 2016
Procedural Posture
Representative Proceeding (class Action) / Settlement Approval Under S 33 V of the Federal Court of Australia Act 1976 (cth)
Outcome
Settlement approved
Legal Topics
['class Actions' 'settlement Approval' 'litigation Funding' 'continuous Disclosure' 'misleading or Deceptive Conduct' 'shareholder Claims']
['commercial Law' 'corporations Law' 'civil Procedure'] ['class Actions' 'settlement Approval' 'litigation Funding' 'continuous Disclosure' 'misleading or Deceptive Conduct' 'shareholder Claims']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the proposed class action settlement is fair and reasonable under s 33V of the Federal Court of Australia Act 1976 (Cth)' 'Whether the Settlement Distribution Scheme is fair and reasonable as between class members' 'Whether the funding commission to be deducted is fair and reasonable' 'Whether the Court has power to approve settlement and reduce the percentage funding commission' 'Whether deductions for legal costs, administration, and applicant expenses are reasonable']

Ratio Decidendi

The proposed class action settlement is fair and reasonable in the interests of class members under s 33V. The Court has power to approve the settlement and make orders reducing an excessive litigation funding commission, but in this case, the agreed funding commission rates between 26% and 30% are fair and reasonable, as is the Distribution Scheme and all proposed deductions. Objections from unregistered class members do not warrant refusal of approval; their position was adequately protected through notice, and the scheme’s exclusions are fair given the need for finality and settlement viability.

Court Disposition

Settlement approved

Orders

  • ['The class action settlement dated 21 February 2016 is approved under s 33V of the Federal Court of Australia Act 1976 (Cth).' 'The Settlement Distribution Scheme providing for deductions of specified legal costs, administration costs, applicant expenses and a funding commission between 26% and 30% as set out in...