First Plaintiff v First Defendant

2 Section 33ZDA provides for an order that the legal costs payable to the law practice representing the plaintiff and group members in a group proceeding be calculated as a percentage of the amount that may be recovered in the proceeding. In this application, the plaintiffs seek a GCO percentage of 33 per cent (inclusive of GST) payable to their solicitors, Slater and Gordon Limited ('Slater and Gordon').

3 For the reasons which follow, I am satisfied that a GCO should be made but not satisfied that the specified percentage should be 33 per cent. Instead, having regard to the evidence and submissions before me, I have determined that an appropriate percentage is 27.5 per cent (inclusive of GST).

(a) an affidavit of Ms Williams dated 22 October 2024;

(b) two affidavits of Ms Dawson, one dated 23 October 2024 and another dated 29 November 2024; and

(c) an affidavit of Mr Benedict Tobin Hardwick, a practice group leader in Slater and Gordon's class action department with the conduct of this matter, dated 23 October 2024.

5 The defendants adopt a neutral position in relation to whether a GCO should be made and did not file any evidence.

6 Much of the evidentiary material upon which the plaintiffs rely is subject to confidentiality orders on the basis that it is legally professionally privileged, would confer an unfair strategic advantage on the defendants were it to become known to them, and/or is properly commercial in confidence regarding Slater and Gordon's business. As a result, the defendants have been provided with the affidavits in heavily redacted form, the hearing had to be conducted with a degree of circumspection and these reasons are divided between a publicly available section and a confidential appendix, only available to the plaintiffs and their legal representatives. The public portion of these reasons necessarily deals with the issues relating to the GCO percentage at a higher level of generality than the confidential appendix.

7 Each of the defendants is in the business of insurance. The claims in the proceeding relate to home insurance, home contents insurance, and home and contents insurance policies (for convenience, collectively 'home and contents policies') which the defendants provided to the plaintiffs and group members. The first defendant provided such policies under the 'SGIO' and 'SGIC' brands, and the second defendant provided such policies under the 'RACV' brand.

8 Ms Dawson obtained home and contents policies from the first defendant under its SGIO brand and Ms Williams obtained home and contents insurance policies from the second defendant under the RACV brand. The group members, broadly described, are persons who within a six-year period prior to the commencement of the proceeding renewed and were subsequently issued home and contents policies under the SGIO, SGIC or RACV brands by either the first or second defendant (as the case may be).

9 The plaintiffs allege that the defendants represented to home and contents policy holders that they would receive a loyalty discount on renewing their policies but that, contrary to those representations, the defendants' algorithmic demand modelling meant there was, in effect, a loyalty uplift which cancelled out (in whole or in part) any loyalty discount.

10 In their pleadings the plaintiffs characterise the conduct of the defendants as misleading and/or deceptive conduct in contravention of various statutory norms or unconscionable conduct contrary to s 12CB of the Australian Securities and Investments Commission Act 2001 (Cth) ('ASIC Act').

11 The defendants are defending the proceeding and deny that they engaged in misleading and/or deceptive conduct and deny engaging in unconscionable conduct.

12 Based on the parties' pleadings, one key factual contest will be the impact of the 'demand modelling' on the defendants' pricing policies. The defendants plead that the demand modelling took into account approximately 50 to 80 factors at any point in time and that, in any event, it was only one element amongst others in its pricing process.

13 On 23 June 2023, the Australian Securities and Investments Commission ('ASIC') released Report 765 - 'When the price is not right: Making good on insurance pricing promises'. In that report, ASIC documented its concern that some insurers had been making representations to customers regarding loyalty discounts which were misleading because the loyalty discount was reduced or offset by a 'loyalty tax'. On 25 August 2023, ASIC commenced a proceeding in the Federal Court of Australia against the defendants in this proceeding, alleging that they had engaged in misleading conduct regarding their loyalty discounts.

14 Section 33ZDA of the Act provides that the Court may make a GCO 'if satisfied that it is appropriate or necessary to ensure that justice is done in the proceeding'. For the reasons that follow, I am so satisfied.

15 The principles governing the application of s 33ZDA are well established and for present purposes, do not need to be repeated.[1]

16 The factors in this proceeding which demonstrate the appropriateness of a GCO are:

(a) each of the plaintiffs has given evidence that they specifically prefer a GCO funding model for the proceeding and that they regard it as having significant benefits for themselves and group members. I list some of those benefits further below;

(b) the GCO provides a simple, transparent and readily understandable method for the calculation of the plaintiffs' costs;

(c) the GCO provides protection that any compensation will not be eroded by costs which exceed the given percentage;

(d) the GCO provides the plaintiffs and group members with a measure of certainty regarding the percentage of any recovery amount which they will receive (subject to the power to vary a GCO under s 33ZDA(3) and deductions for matters other than the plaintiffs' legal costs);

(e) a GCO will provide an alignment of interest between the interests of the plaintiffs and group members and those of Slater and Gordon; and

(f) the evidence establishes that if a GCO is not made, Slater and Gordon would seek to obtain third party litigation funding for the proceeding. The evidence establishes that it is likely that any third party litigation funding would in almost all scenarios result in greater deductions from any recovery in the proceedings than under the proposed GCO.

17 For these reasons, I am satisfied a GCO is appropriate to ensure justice is done in this proceeding.

18 In the present circumstances, my consideration of the appropriateness of the proposed GCO percentage is informed by the following principles:

(a) the Court, in determining a GCO percentage, must be 'satisfied that it is appropriate or necessary' to ensure that justice is done in the proceeding;[2]

(b) considerations of reasonableness and proportionality inform the setting of an appropriate GCO percentage;[3]

(c) one factor, though not the only one, is whether the GCO will provide a return to the plaintiffs' solicitors which is proportionate to the risks undertaken by them on the assumption of their obligations under s 33ZDA.[4] Relevant to that assessment are:

(i) the novelty, complexity and risk involved in the proceeding;

(ii) the amount that may be recovered; and

(iii) the capital the legal practice anticipates it will invest in the proceeding.[5]

(d) whilst the appropriateness of a rate must be determined by reference to the individual circumstances of each case, it is appropriate to compare the rate sought with rates which have been determined in other cases;[6] and

(e) in considering the reasonableness and proportionality of the costs allowed to the legal practice, it is also permissible to have regard to principles employed in other contexts to analyse returns on investment;[7]

(f) at the time an initial GCO order is made, the Court is necessarily engaged in a forward-looking exercise with limited information. For this reason, s 33ZDA(3) provides an important safeguard allowing the Court to revisit the GCO rate in light of known facts regarding the proceeding;[8]

(g) the fact that an order as to the percentage rate can be amended later is not a reason to act arbitrarily or to depart from the requirements of s 33ZDA.[9]

19 The evidence on which the plaintiffs rely for the proposition that the GCO rate should be 33 per cent (inclusive of GST) is detailed and voluminous. Owing to the confidential nature of much of that evidence, in this portion of the reasons I summarise its effect at a reasonably high level of generality.

20 In summary, the plaintiffs rely on the following:

(a) each of the plaintiffs has specifically agreed to the 33 per cent figure in the retainer into which they entered with Slater and Gordon;

(b) Mr Hardwick gives evidence of Slater and Gordon's internal processes in determining that the appropriate GCO percentage was 33 per cent. Those processes are said to show a careful and measured consideration of the appropriate rate;

(c) Mr Hardwick addresses a range of characteristics of the proceeding in his affidavit and in particular, makes an assessment regarding:

(i) the novelty, complexity and risks associated with the proceeding;

(ii) the estimated class size;

(iii) the estimated claim size;

(iv) a consideration of the likelihood of success in the proceeding;

(v) a consideration of potential likely settlement ranges;

(vi) an estimate of Slater and Gordon's legal costs calculated on an hourly rate basis together with an estimate of its actual input costs involved in running the proceeding; and

(vii) a series of modelled outcomes demonstrating the return to Slater and Gordon at various points within the estimated settlement range;

(d) a comparison of the GCO rate with the 27.5 per cent GCO rate approved by this Court in the matter of Allen v G8 Education Ltd ('G8');[10]

(e) a comparison of the proposed GCO percentage with the average rate in all other GCO cases in which a GCO has been awarded by the Court thus far; and

(f) a consideration of the outcomes of various no win, no fee consumer cases run by Slater and Gordon.

21 On this application, Slater and Gordon have not provided any evidence of their estimated internal rate of return ('IRR') on the moneys that they will defray in relation to the proceeding. Nor in the material, do they calculate a return on investment ('ROI'), though one can be calculated by reference to the information which Mr Hardwick has provided in his affidavit.

1. I accept that it is a factor in favour of the GCO percentage sought by the plaintiffs that each of them specifically agreed to that percentage in their retainer. That said, however, neither plaintiff deposes to any particular awareness of GCO rates in other proceedings or to any particular consideration of matters impacting a 'risk/reward' analysis so as to assess the proportionality of Slater and Gordon's proposed fee.
2. Each of the plaintiffs specifically depose to one feature of their preference for a GCO being that the Court exercises close supervision over the making of the GCO and the setting of the rate. Whilst the plaintiffs' agreement to the 33 per cent rate is therefore a factor which weighs in the balance in favour of that rate, it is not a particularly strong factor and in no way obviates the obligation of the Court to make its own assessment of what is appropriate in order to ensure justice is done in the proceeding.

1. I accept that Slater and Gordon's processes by which it determined to fund the proceeding on the basis of a 33 per cent GCO were considered and followed a careful analysis of the characteristics of the proceeding. For reasons which I outline below, though, I am ultimately not persuaded that the factors to which Mr Hardwick refers in his affidavit warrant the GCO percentage sought.

1. It is appropriate that I say something about the characteristics of this case.
2. First, I accept without reservation that the case will be hard fought, that aspects of it will involve factual complexity and that, like all litigation, there are substantial risks for the plaintiffs and group members in establishing liability and loss.
3. Secondly, I accept that at this stage of the proceeding, there are considerable difficulties in accurately estimating the size of the class and the size of the claim, and that at this stage of the proceeding, it is more difficult to make any well-informed judgment regarding likelihood of success. I also accept that at this stage of the proceeding, whilst Slater and Gordon have done their best to estimate the budget for the proceeding in terms of their expenditure, that estimate may prove to be significantly inaccurate.
4. However, each of those matters exists to a greater or lesser extent in all class actions and based on the materials which are in evidence, I would not regard the specific characteristics of this case warranting a GCO percentage significantly beyond the median GCO percentage in all GCO cases or significantly beyond the percentage ordered in similar consumer class actions.

1. It is appropriate to consider the relative novelty, complexity and level of risk in this proceeding in assessing whether a GCO percentage is justified.
2. I do not regard there as being anything particularly novel about this proceeding. The causes of action - misleading and deceptive conduct and unconscionability - are regularly pleaded in consumer class actions such as these. It is true that the factual circumstances of this case are unique, but that is so of every case. Unique factual circumstances, without more, do not constitute novelty or relative novelty for the purposes of justifying a higher GCO percentage.
3. The question in relation to complexity and risk is not whether there is complexity and risk because in almost every class action there will be both significant complexity and substantial risk. The question is whether the particular identified complexity and risk in this proceeding justifies a significantly higher GCO than in proceedings in general and in other consumer class actions in particular.
4. At the time of setting an initial GCO rate, an assessment of complexity and risk will necessarily be based on limited information. However, here the confidential material provides considerable detail regarding the complexity and risks associated with this proceeding which allows the Court to move beyond matters of 'general impression'.[11] A detailed consideration of complexity and risk associated with the proceeding is contained in the confidential appendix to these reasons.
5. On the basis of the evidence before me, I do not consider that the complexity and risks of this proceeding are so substantially and significantly greater than the complexity and risks which arise in class actions generally as to warrant a GCO rate substantially and significantly greater than the mean or median GCO percentage.

1. The plaintiffs correctly identify that novelty, complexity and risk are only one input into a consideration of an appropriate GCO percentage. It is also necessary to pay regard to the amounts which might reasonably be anticipated as within a likely range of recovery and to the amounts which the legal practice anticipates it will be required to expend in the prosecution of the action.
2. If two class actions had exactly the same novelty, complexity and risk but one was likely to result in a much larger settlement than the other, a lower GCO percentage might be appropriate in the case with a higher anticipated settlement figure. If two cases had exactly the same novelty, complexity and risk but one required greater levels of expenditure by the legal practice, that might be a reason to consider a higher GCO percentage in the case with anticipated higher expenditure.
3. As indicated above, the plaintiffs have provided detailed and thoughtful evidence regarding potential settlement outcomes and the budget for their proceedings. It is sufficient in this non-confidential aspect of the reasons for me to say that I have taken that evidence into account in my determination of the appropriate rate for the GCO in this case. Ultimately, I am not satisfied that the plaintiffs have justified a rate of 33 per cent, but I am satisfied that a rate of 27.5 per cent is appropriate.

1. In submissions filed after the hearing pursuant to leave, the plaintiffs emphasised the difficulties in comparing GCO rates across cases. I accept that caution must be exercised in any comparative analysis. However, in this case the plaintiffs and Slater and Gordon specifically eschew the utility of any intrinsic analysis based on investment metrics (such as IRR and ROI). In the circumstances, it seems to me inevitable that some form of comparison must be done to assess the relative novelty, complexity and risks of this proceeding in order to assess whether a GCO percentage substantially beyond the average or median is justified.
2. In any event, the plaintiffs did not submit that comparisons should not be done but, in effect, asked the Court to focus on one comparison with the rate set in G8 and ignore or place no weight upon other comparators. I do not accept that the comparative exercise should be so limited.
3. Below is a table of all of the GCO orders which have been made by the Court under s 33ZDA of the Act. The table updates the table produced in Schedule 1 to the reasons in Warner v Ansell Ltd[12] in two respects:

(a) it inserts the outcome of that case; and

(b) it reflects the fact that the reasons in Fox v Westpac Banking Corporation (No 2)[13] resulted in group costs orders in three separate proceedings, Fox v Westpac Banking Corporation ('Fox'), O'Brien v Australian and New Zealand Banking Group Limited ('O'Brien') and Nathan v Macquarie Leasing Pty Ltd ('Nathan').

Bogan v the Estate of Peter John Smedley (Deceased)[15]

Nelson v Beach Energy; Sanders v Beach Energy[16]

Fuller v Allianz Australia Insurance Ltd; Wilkinson v Allianz ('Fuller')[19]

Fox v Westpac Banking Corporation (No 2)[21]

O'Brien v Australia and New Zealand Banking Group Ltd[22]

Andreson-Vaughan v AAI Ltd ('Anderson-Vaughan')[23]

DA Lynch v Star Entertainment Group[24]

5 Boroughs NY Pty Ltd v Victoria (No 5) ('5 Boroughs')[26]

McCoy v Hino Motors Ltd ('McCoy')[27]

Norris v Insurance Australia Group Ltd[30]

Raeken PTY Ltd v James Hardie Industries plc[31]

1. Utilising the figures in the above table, it is possible to calculate the mean GCO percentage, the median and the mode. For the purposes of that calculation, where the Court has approved multiple rates, I have adopted the highest applicable rate. The table shows that the mean GCO rate is 27 per cent, the median is 25 per cent, and the mode is 24.5 per cent. As will be seen from the table, the mean figure is higher than the median and mode, largely because of three proceedings (being Bogan v The Estate of Peter John Smedley (deceased) ('Bogan'),[34] Gawler v Fleet Partners Group Ltd,[35] and Warner v Ansell Ltd).[36] It is to be observed that no proceeding other than these three has involved a GCO percentage greater than 30 per cent.
2. The proposed GCO percentage in this case would be the fourth highest which the Court has made and would exceed the mean GCO percentage by 6 per cent and the median percentage by 8 per cent.
3. Whilst considerable care needs to be exercised in comparing GCO rates across different cases, it is nonetheless appropriate to take into account some form of comparative analysis in determining whether the rate in a particular case is justified. In particular where, as is the case here, an applicant for a GCO seeks the specification of a percentage which is at the higher end of such percentages and significantly more than the mean or median figures, it will need to provide a sufficient justification for doing so.

1. In this case, the plaintiffs rest heavily in their justification for the specified percentage on the fact that this is a consumer class action, rather than a shareholder class action.
2. I do not accept that as a class of cases, consumer class actions are generally more risky than shareholder class actions. Perhaps this was once the case, but there is no basis for that assessment now.
3. Few class actions proceed to judgment, but as is well known, no shareholder class action which has proceeded to judgment has, to date, resulted in judgment for the plaintiff. This is not the case for consumer class actions where at least some such cases have resulted in favourable judgments.[37]
4. There are three specific matters in relation to which consumer class actions can carry greater risk than shareholder class actions:

(a) the identification of class members;

(b) the numbers of group members who need to participate in order for a claim to be economically viable; and

(c) the possibility of remediation schemes impacting on recoverable losses.

1. Identification of class members in a consumer class action can be more difficult than the identification of shareholders in a shareholder class action. In this case, however, all of the potential group members are customers of two entities and the notification and identification of class members will be a similar exercise to that which occurs in a shareholder class action.
2. One area where shareholder class actions are potentially less difficult than consumer class actions is that, generally speaking, the loss in shareholder class actions will be concentrated in a relatively small number of institutional shareholders and so such cases may be economically viable from the standpoint of those funding those cases, with fewer numbers of group members participating.
3. Consumer class actions are more likely than shareholder class actions to involve situations where the defendant (either on their own initiative or at the prompting of the regulator) embarks on a remediation program which has the potential effect of reducing the losses recoverable in the class action. In this case, where ASIC has initiated proceedings against the defendants in respect of the same conduct which is the subject of the proceeding, this is a possibility but there is no evidence that it is likely.
4. Each of these three identified matters bears on the quantum of losses but they are not relevant to an assessment of the intrinsic likelihood of success in the proceeding.
5. Further, as will be seen from the table above, it is not the case that GCO percentages in consumer class actions have any systemic upward bias: Fox, O'Brien and Nathan all have GCO percentages of 24.5 per cent and Fuller, Anderson-Vaughan and McCoy all have 25 per cent rates.
6. The plaintiffs submitted that a comparison with these consumer cases was inapt because, whilst they had risks associated with liability, they were generally less complex in relation to matters of quantum. I do not accept that is so. I discuss issues relating to complexity of this proceeding in more detail in the confidential appendix.
7. Further, the plaintiffs submit that in Fox, O'Brien, Nathan and Fuller, there was a sharing of risk amongst firms or between a firm and funder and contrast that with the situation here. There is nothing in the circumstances of those cases which suggests that because the legal practice had engaged in a form of revenue or risk-sharing that resulted in a lower GCO percentage.[38]
8. In any event, the GCO rate I have determined as appropriate to ensure justice is done in this proceeding is greater than the rate determined in each of those comparator cases.
9. Mr Hardwick provided evidence of the percentage of total legal costs to settlement outcomes in five of Slater and Gordon's recent consumer cases. The effect of his evidence was that legal costs in those cases were, on average, 25.75 per cent of the settlement amounts. The actual percentages ranged from 7.7 per cent up to 51.7 per cent. The two highest percentages of legal costs to settlement amounts, 30 per cent and 51.7 per cent came in two cases where the settlement was below $30 million. The lower percentages of legal costs to settlement amounts, 7.7 per cent, 17 per cent and 22.5 per cent, came in cases which settled around the $50 million mark. Having regard to the totality of the confidential materials, it is not my view that this evidence provides a basis for setting a GCO rate of 33 per cent in this case. I deal with this issue in more detail in the confidential appendix to these reasons.

1. I have considered carefully the detailed matters in the confidential evidence regarding the complexity and risks associated with this proceeding. I do not regard that evidence as demonstrating the risks and complexities in this case as likely to be greater than those referred to by Keogh J in the 5 Boroughs case where a GCO percentage of 30 per cent was specified.
2. The plaintiffs submit a comparison with the GCO percentage in that case ought not be made because:

(a) the quantum in issue in 5 Boroughs is not known but may be very great;

(b) the anticipated budget and time to resolution are not known;

(c) it is a case brought against public authorities not a private entity; and

(d) risk is shared with a litigation funder.

58 I do not accept that the matter in (d) above had any bearing on the question of an appropriate GCO percentage in 5 Boroughs. I accept that in any comparative exercise it is necessary to exercise caution because of potentially distinguishing factors such as those in (a) to (c) above. Nonetheless, I regard the comparison with the 5 Boroughs GCO percentage as one matter amongst many to which I am entitled to have regard in determining the appropriate GCO percentage for this proceeding.

1. The plaintiffs particularly rely on a comparison with the GCO rate in G8 in support of the proposed 33 per cent rate. I deal with this in more detail in the confidential appendix to these reasons, but it suffices to say that I have taken into account the rate in G8 in my consideration as to whether the rate of 33 per cent is justified in this case.

1. I have noted above that Slater and Gordon did not provide any calculation of its IRR should a GCO of 33 per cent be made and provided no explicit calculation of its ROI. It was submitted that these metrics were better considered at the conclusion of a proceeding in the determination of whether to exercise the power to vary a GCO rate under s 33ZDA(3) of the Act. In G8, Slater and Gordon's initial position was that the internal rate of return would be an unhelpful metric for the Court to consider at all. As John Dixon J noted in Bogan, a consideration of financial metrics may assist the Court in assessing the reasonableness and proportionality of a proposed or actual GCO rate. If ROI and IRR calculations are provided when the rate is set, it follows that the Court will have a powerful comparator when it comes to a consideration of whether the GCO rate should be varied at the conclusion of proceedings.
2. In any event, no IRR calculation was provided in the present proceeding. However, based on the evidence of Mr Hardwick, it is possible to calculate the ROI which Slater and Gordon will receive under various modelled scenarios. I have taken into account a broad assessment of potential ROI outcomes in conjunction with the matters referred to above in my consideration of an appropriate GCO percentage in this case. I deal with this issue in more detail in the confidential appendix to these reasons.

1. Section 33ZDA(3) is an important safeguard - if an initial GCO percentage is, in light of subsequent events, too high or too low the Court is provided with a power to amend the GCO percentage. That power can be exercised at any stage during the proceeding.
2. The plaintiffs submitted, and I accept, that generally speaking it is less desirable for a GCO percentage to be amended by way of increase. This is because group members will have been notified of the initial GCO percentage and may require further notification (and perhaps opportunity to opt out) if the percentage is to be increased. On the other hand, having been notified of a higher GCO percentage it would usually be unnecessary to provide group members with notification of a lower percentage or to provide any further opportunity to opt out.
3. Nonetheless, the Court is required to specify a GCO percentage as part of an order which is appropriate to ensure justice is done in the proceeding. In this case, it would be an abrogation of the Court's role to specify 33 per cent if otherwise satisfied that the appropriate percentage was 27.5 per cent on the basis that the percentage could always be varied down later. Equally, despite the matters referred to in the previous paragraph, if 27.5 per cent is specified as the GCO percentage and subsequent events establish it is too low, the power in s33ZDA(3) of the Act provides a safeguard mechanism.

1. For all of the reasons discussed above, I am satisfied that in this case a GCO is appropriate in order to ensure justice is done in the proceeding, however, I am not satisfied that the GCO percentage sought by the plaintiffs of 33 per cent is appropriate and would instead order a percentage of 27.5 per cent.

[1] See for example Fox v Westpac; Crawford v ANZ [2021] VSC 573; Allen v G8 Education Ltd [2022] VSC 32; Bogan v The Estate of Peter John Smedley (Deceased) [2022] VSC 201; Mumford v EML Payments Ltd [2022] VSC 750.

[2] Gehrke v Noumi [2022] VSC 672, [53] ('Noumi').

[5] Warner v Ansell [2024] VSC 491, [56]-[60] ('Warner').

[6] Raeken Pty Ltd v James Hardie Industries plc [2024] VSC 173, [60].

[7] Bogan v the Estate of Peter John Smedley (deceased) [2022] VSC 201, [15].

[10] [2022] VSC 32 ('G8').

[11] Norris v Insurance Australia Group Ltd [2024] VSC 76, [41].

[12] [2024] VSC 491.

[13] [2023] VSC 95.

[14] [2022] VSC 32.

[15] [2022] VSC 201.

[16] [2022] VSC 424.

[17] [2022] VSC 672.

[18] [2022] VSC 750.

[19] Ruling of Nichols J dated 1 November 2024 in S ECI 2020 02853.

[20] [2022] VSC 787.

[21] [2021] VSC 95.

[23] [2023] VSC 465.

[24] [2023] VSC 561.

[25] [2023] VSC 574.

[26] [2023] VSC 682.

[27] [2023] VSC 757.

[28] [2023] VSC 768.

[29] [2024] VSC 152.

[30] [2024] VSC 76.

[31] [2024] VSC 173.

[32] [2024] VSC 365.

[33] [2024] VSC 491.

[34] [2022] VSC 201.

[35] [2024] VSC 365.

[36] [2024] VSC 491.

[37] For example Williams v Toyota Motor Corporation Australia Limited [2024] HCA 38; Capic v Ford Motor Company of Australia Pty Ltd [2024] HCA 39.

[38] See for example Fox v Westpac Banking Corporation [2021] VSC 573, [80]-[84].