Alford v AMP Superannuation Limited

Federal Court of Australia|2024-04-04|Before: Mr J, Anderson J

The discontinuance of this proceeding as against the Fourth Respondent is approved pursuant to s 33V(1) of the Federal Court Act 1976 (Cth) (the Act) and r 26.12(4) of the Federal Court Rules 2011 (Cth).
The discontinuance of this proceeding insofar as it relates to claims in respect of amounts invested in Platform Funds (as that term is defined in paragraph 3.2 of the Amended Consolidated Statement of Claim dated 2 November 2020) and Mature Products (as that term is defined in the affidavit of Rebecca Gilsenan affirmed on 17 November 2023), is approved.
Leave is granted to the Applicants to discontinue the proceeding as against the Fourth Respondent by filing a notice of discontinuance.
Leave is granted to the Applicants to discontinue their claims as against the First to Third and Fifth and Sixth Respondents insofar as they relate to amounts invested in the Platform Fund Products and Mature Products.
Pursuant to s 37AF(1)(b) and s 37AG(1)(a) of the Act, the Court orders that paragraphs 10, 23 to 28, 33, 41 to 44 and annexure RG-42 (being the written opinion of the applicants' counsel team) of the Affidavit of Rebecca Gilsenan affirmed 8 March 2024 be treated as confidential and subject to the restrictions in r 2.32(1)(b) and r 2.32(3)(a) of the Federal Court Rules 2011 (Cth). Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Legal principles 11 Section 33V of the Act provides: 33V Settlement and discontinuance - representative proceeding (1) A representative proceeding may not be settled or discontinued without the approval of the Court. … 12 The approval of the Court under s 33V of the Act is required, both for the discontinuance of the proceedings against NMMT and for the narrowing of the allegations against other respondents in respect of the Mature Products: Ridge v Hays Specialist Recruitment (Australia) Pty Limited [2022] FCA 1613 at [10] (Murphy J) citing Bray v Hoffman-La Roche Ltd [2003] FCA 1505 at [22]-[24] (Merkel J); Matthews v SPI Electricity Pty Ltd (Ruling No 16) [2013] VSC 74 at [23]-[24] (John Dixon J); Re Banksia Securities Ltd (recs and mgrs apptd) [2017] VSC 148 at [45] (Robson J). 13 In this Court the relevant test to apply in determining whether to approve a unilateral discontinuance of claims is whether it is not "unfair, unreasonable, or adverse" to the interests of group members as a whole: Watson v Maximus Holdings (NSW) Pty Ltd [2021] FCA 87 at [49] (Wigney J); Wruck v Telstra Limited [2023] FCA 932 at [36] (Murphy J); Mutch v ISG Management Pty Ltd (No 3) [2023] FCA 648 at [18] (Bromberg J).

Application of principles to proposed discontinuance 14 The discontinuance of the claims in respect of the Platform Funds and Mature Products is expected to affect a total of around 420,000 people, comprised of groups (with some overlap) of approximately: (a) 200,000 people invested in Platform Funds; (b) 220,000 people invested in Mature Products. 15 I have read and considered the Seventh Gilsenan Affidavit and counsel's opinion annexed to that affidavit. I agree with the opinion of counsel expressed in their written opinion that it cannot be considered "unfair, unreasonable or adverse" to the interests of group members as a whole for the claims in respect of the Platform Funds and Mature Products to be discontinued in circumstances where the claims lack reasonable prospects of success. For these reasons, I will: (a) approve the discontinuance of this proceeding against NMMT pursuant to s 33V(1) of the Act and grant leave to the Applicants to discontinue the proceeding as against NMMT by filing a notice of discontinuance pursuant to r 26.12(4) of the Rules; and (b) approve the discontinuance of this proceeding insofar as it relates to claims in respect of the Platform Funds and Mature Products, and grant leave to the Applicants to discontinue their claims against the First to Third and Fifth and Sixth Respondents in this respect.

Confidentiality orders 16 On 16 February 2024, Murphy J ordered that pursuant to s 37AI of the Act, any affidavit, annexure, exhibit or submissions filed in the discontinuance application in respect of which a confidentiality order was sought would be suppressed upon filing on an interim basis until further order. 17 The Applicants seek orders under s 37AF(1)(b) and s 37AG(1)(a) of the Act that paragraphs 10, 23 to 28, 33, 41 to 44 of the Seventh Gilsenan Affidavit, and the counsel opinion at annexure RG-42, be suppressed, and treated as confidential and subject to the restrictions in r 2.32(1)(b) and r 2.32(3)(a) of the Rules. 18 The authorities establish that a confidentiality order is warranted to protect the confidentiality of counsel's opinion tendered in support of settlement or discontinuance approval. Such orders promote the interests of justice by: (a) preserving the applicants' privilege in the opinion, which is not waived by the filing or tender of a solicitor affidavit or counsel opinion in support of a discontinuance application: Wingecarribee Shire Council v Lehman Brothers Australia Ltd (in liq) (No 9) (2013) 97 ACSR 227; [2013] FCA 1350 at [105] (Jacobson J); (b) enabling counsel to be candid in disclosing their opinions to their clients knowing they will be relied on by the Court: Batey-Smith v Vasco Trustees Limited [2022] FCA 1203 at [96] and [104] (O'Callaghan J) in the context of a settlement, citing Cantor v Audi Australia Pty Ltd (No 5) [2020] FCA 637 at [275]-[278]. 19 That principle applies not only in a settlement context, but also in the context of a discontinuance and, a fortiori, in the context of a partial discontinuance where related claims remain on foot, as is the case here: DBE17 (by his litigation guardian Marie Theresa Arthur) v Commonwealth of Australia (No 3) [2021] FCA 1584 at [23] (Mortimer J). 20 I am satisfied that it is appropriate to make the confidentiality orders sought by the Applicants as such orders promote the interests of justice in this case, and have been narrowed only to those parts which are necessary to suppress.

costs 21 At a case management hearing on 16 February 2024, Murphy J indicated to the parties that he intended to deal with any remaining issue of costs after the resolution of the discontinuance application. Accordingly, I will leave the issue of costs to Murphy J.

Disposition 22 I will make the orders sought by the Applicants. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson.

Associate: Dated: 4 April 2024 SCHEDULE OF PARTIES VID 572 of 2019 Applicants Fourth Applicant: JODIE MITCHELL Respondents Fourth Respondent: NMMT LIMITED (ACN 058 835 573) Fifth Respondent: AMP SERVICES LIMITED (ACN 081 143 786) Sixth Respondent THE NATIONAL MUTUAL LIFE ASSOCIATION OF AUSTRALASIA LIMITED (ACN 004 020 437)

Federal Court Act 1976(Cth)

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