Street v State of Western Australia [2024] FCA 1368, 29 October 2024, Murphy J
Andrew Crowe KC and Max Walker appeared for the State of Western Australia on an application for court approval of settlement of a class action in respect of the WA Stolen wages litigation.
On 17 October 2023, the dispute settled for “up to” $180.4M on the basis of $16,500 per eligible claimant (up to a maximum of 10,000 claimants) hence a maximum of $165M plus a maximum of $15.4M for party and party costs.
At the time of settlement the number of potential eligible claimants registered with Shine Lawyers (representing the lead Applicant Mr Street) was quite low and it was not known how many claimants might ultimately be found to be eligible claimants. Hence there was a settlement of up to a maximum amount based upon the numbers who might ultimately be found to be eligible.
The relatively low number of registrants at the time of settlement triggered an intensive registration campaign by Shine Lawyers post settlement which substantially increased the number of registrants but at significant cost. Approximately $12M in legal fees was incurred post settlement.
The State supported approval of the settlement and orders approving the settlement were made.
On the approval hearing the State:
(a) Sought a reduction in the commission payment sought by the funder which position had been foreshadowed in the Deed of Settlement;
(b) Opposed paying the funder’s costs of obtaining After the Event (ATE) Insurance in an amount of approximately $1M; and
(c) Sought a reduction in the fees payable to Shine Lawyers in particular in respect of the fees of approximately $9M which had been charged as professional fees for engaging law clerks in the post settlement registration process.
Funder’s Commission
The commission sought by the funder was 20% of gross – ie. 20% of the total amount payable by the State including party and party costs. The State’s position was that commission should only be payable on the total amount payable to class members after deductions approved by the Court. Ultimately Murphy J reduced the commission payable to 16% of gross which amounted to a reduction of approximately $6M which monies are now available to be distributed to class members. The decision to reduce the commission payable primarily turned upon the particular relevant fact that of the total costs of $31.5M the funder met $13.5M with the balance met by Shine Lawyers on a speculative basis.
ATE Insurance Costs
The State’s position was that the ATE cost was a cost of the funder doing business taken out because of the funder’s internal policy requirements. Murphy J concluded that the class members obtained a benefit from the ATE cover ($5M) as it operated to reduce the funder’s exposure to adverse costs which reduced the amount the funder had at risk and thus the quantum of the funding commission. Murphy J. allowed these costs as a deduction from the settlement sum.
Professional Fees for Law Clerks
The amount actually paid to law clerks (primarily undergraduate law students) was not disclosed. The Costs Referee allowed the amount charged by Shine Lawyers as professional fees. The extent of the work undertaken was not challenged by the State only the amount charged per hour notwithstanding the finding of the Costs Referee. Murphy J. found that the costs for law clerks should be reduced by approximately $4M (including approximately $2M treated by Shine Lawyers as a discount). Hence another approximately $4M (in addition to the $6M reduction for funder’s commission) is now available to class members.
Devine Constructions Pty Ltd v Heinrich Constructions Pty Ltd [2024] QSC 285, 22 November 2024, Kelly J
Brent Reading (led by Gareth Beacham KC) appeared for the successful Applicant in this proceeding concerning r. 376 of the Uniform Civil Procedure Rules 1999 (Qld) (amendment after limitation period). The Respondents opposed the relief sought, primarily on the basis that the “new” cause of action for which the Applicant sought leave to plead did not “arise out the same facts or substantially the same facts as a cause of action for which relief has already been claimed” (see r. 376(4) of the UCPR). Following a detailed consideration of the relevant authorities, Justice Kelly rejected the Respondents’ arguments.
Rusbridge v Lake Fox Limited [2024] QSC 279, 15 November 2024, Freeburn J
Hannah Lilley (led by Michael Hodge KC) appeared for the successful second defendant, the plaintiff in this third party proceeding, which focused on the construction of a clause in a commercial contract relating to insurances. The third party was found to have breached the contract for failing to procure public liability insurance naming the second defendant as an additional insured or a person to whom the benefit of insurance extends for its respective rights and interests.
Australian Securities and Investments Commission v ALAMMC Developments Pty Ltd (No 1) [2024] FCA 1275, 4 November 2024, O’Sullivan J
Mark Steele KC (leading Sarida McLeod and Leo Freckelton) appeared for ASIC in this successful application for the appointment of receivers to thirteen corporate defendants, and to the estates of two natural persons, each of whom was being investigated for possible breaches of the Corporations Act 2001. Mr Assaf SC and Mr Strickland appeared for the unsuccessful defendants.
RE Oakey Pty Ltd v Canadian Solar Construction (Australia) Pty Ltd [2024] QCA 202, 29 October 2024, Bond and Boddice JJA and Wilson J
Mark Steele KC and Brent Reading appeared for the successful respondent in this appeal, involving questions of contractual construction, the construction of the Building Industry Fairness (Security of Payment) Act 2017, misleading and deceptive conduct and unconscionable conduct.
Paladin Projects Pty Ltd v Visie Three Pty Ltd & Ors (No 2) [2024] QSC 244, 18 October 2024, Williams J
Brent Reading appeared for the respondent in this proceeding, who applied for an order that its costs of the proceeding be paid on the indemnity basis. The respondent was successful. Justice Williams’ judgment considers the factors relevant to the making of an indemnity costs order.
Paladin Projects Pty Ltd v Visie Three Pty Ltd & Ors [2024] QSC 230, 25 September 2024, Williams J
Brent Reading (instructed by Clayton Utz) appeared for the successful respondent in this proceeding. The proceeding concerned whether an adjudicator’s decision made pursuant to the Building Industry Fairness (Security of Payment) Act 2017 (Qld) was liable to be set aside on grounds of alleged jurisdictional error. Justice Williams found that it was not. Of note is her Honour’s consideration of s. 82(4) of the BIF Act regarding the prohibition against an “adjudication response” including “new reasons” for withholding payment, not included in a payment schedule.
Bilson v Vatsonic Communications Pty Ltd; Vatsonic Communications Pty Ltd v Bilson [2024] QCA 171, 13 September 2024, Bowskill CJ, Boddice JA and Henry J
Brent Reading (led by David de Jersey KC) appeared for one of the respondents to this appeal, being the Townsville City Council. The Appeal judgment considers significant issues regarding liability, quantum and the proper construction of an indemnity clause. Further, the Appeal judgment is the first within Australia to consider the proper interpretation of s. 236B of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (which has analogous provisions in other States and Territories). This part of the Appeal judgment is presently subject to an application for special leave to appeal before the High Court of Australia.
Kondratenko v Kennards Storage Management Pty Ltd [2024] FCA 913, 15 August 2024, Meagher J
Hannah Lilley appeared for the respondents in the proceeding who successfully applied for orders that judgment be given for the respondents against the applicant pursuant to Federal Court of Australia Act 1976 (Cth) s 31A and Federal Court Rules 2011 (Cth) r 26.01(1), with the effect that the applicant’s proceedings were dismissed in their entirety on the grounds that the proceedings were frivolous and vexatious, no reasonable cause of action was disclosed, the proceedings were an abuse of process of the Court and the applicant had no reasonable prospect of successfully prosecuting the proceeding.
Australian Securities and Investments Commission v A One Multi Services Pty Ltd (No 3) [2024] FCA 1209, 7 August 2024, Derrington J
Mark Steele KC, leading Danielle Tay and Leo Freckelton, acted for ASIC in this successful application by ASIC to wind up the first defendant on the just and equitable ground. Derrington J also accepted ASIC’s submission that the existing receivers to the company should not be appointed as liquidators, and that ASIC’s nominees should be appointed instead.
Skildum-Reid v The University of Queensland [2024] FCA 733, 8 July 2024, Derrington J
Andrew Crowe KC and Jane Menzies appeared for the University of Queensland in an application brought under Rules 7.22 and 7.23 for pre-action discovery in a proposed copyright/moral rights claim. The application was dismissed with costs (in part on the indemnity basis).
Of interest was the court’s consideration of the Applicant’s argument that no limitation period applied to claims for infringments of moral rights absent an express provision in the Copyright Act. Derrington J discusses this issue at paragraphs [36]-[54].
Staged Plus Pty Ltd & others v Yummi Fruit Ice-Creamery Pty Ltd & others [2024] QDC 88, 10 June 2024, Porter KC DCJ
Alexander White appeared for the successful applicants in an application to strike out a pleading alleging defamation. The judgment considers the element of “serious harm” inserted by s 10A of the Defamation Act 2005 (Qld) and the requirements necessary for a valid concerns notice under s 12A of that Act.
Canview Pty Ltd v Gilmore [2024] FCA 586, 27 May 2024, Logan J
Andrew Crowe KC with Maxwell Walker appeared for the Applicant seeking leave to appeal part of interlocutory orders made granting interlocutory injunctive relief. The application for leave to appeal and the related stay application were dismissed by consent (the parties having agreed certain undertakings). The proceeding was cross-vested) to the Supreme court of Queensland where existing proceedings had been brought by Canview Pty Ltd where it obtained interlocutory injunctive relief restaining the termination of a licence agreement for the use of intellectual property rights against the licensor corporation of which Gilmore is a director.
Canview Pty Ltd v Gilmore [2024] FCA 551, 22 May 2024, Meagher J
Andrew Crowe KC with Maxwell Walker appeared for the Applicant seeking interlocutory injunctive relief to restrain unlawful use of confidential information. The interlocutory relief was granted substantially as sought by the Applicant.