PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –
CLASS ACTIONS OR GROUP PROCEEDINGS – COSTS –
COSTS OUT OF FUND OR
PROPERTY – POWER OF COURT TO ORDER - where the plaintiffs were successful
Source
Original judgment source is linked above.
Catchwords
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –CLASS ACTIONS OR GROUP PROCEEDINGS – COSTS –COSTS OUT OF FUND ORPROPERTY – POWER OF COURT TO ORDER - where the plaintiffs were successfulin their class action proceedingagainst the defendant and judgment wasdelivered in their favour in 2021 for a sum of $3.79 million – where the2021 judgmentwas appealed and the appeals dismissed in both the QueenslandCourt of Appeal and the High Court of Australia – where the plaintiffsobtained costs orders in their favour in all three proceedings – where theplaintiffs now seek distribution of the monies toGroup Members in respect ofthe judgment sum and interest and costs on the judgment sum – where theplaintiffs seek costs inrespect of a period for which there has no costs order,that is from 14 March 2024 onwards following the High Court’s judgment– where a common fund order was made in 2019 – where the common fundorder requires the plaintiffs to seek a determination
of the amounts to be paid
to the litigation funder (intervener) prior to any distribution – whether
the distribution should
be made in the scheme contended for by the plaintiffs,
that is broadly, by the “resolution sum” less approved deductions
being paid by the defendant to the plaintiffs’ solicitors and distributed
to Group Members thereafter under the common fund
order – whether payment
to the litigation funder (intervener) for commission ought to be deducted from
the “resolution
sum” prior to distribution – whether the
defendant ought to pay the plaintiffs’ costs following 14 March 2024 and
Securities and Investments Commission v Atlantic 3 (Financial Aust) Pty Ltd
(No 3) [2008] QSC 9
[2008] 2 Qd R 298
Blairgowrie Trading Ltd and Another v Allco
Finance Group Ltd (ACN 007 721 129) (recs and mgrs. apptd) (in liq) and Others
(No 3)
[2017] FCA 330
(2017) 343 ALR 476
BMW Australia Ltd v Brewster [2019] HCA 45
(2019) 269
CLR 574
Court v Spotless Group Holdings Ltd [2020] FCA
1730
Kozik & Ors v Redland City Council [2021] QSC
233
Krieger v Colonial First State Investments Limited [2024] FCA
1402
McMullin v ICI Australia Operations Pty Ltd [1998] FCA 658
(1998) 84 FCR
1
Money Max Int Pty Ltd (Trustee) v QBE Insurance Group Ltd [2016] FCAFC 148
(2016) 338
ALR 188
Redland City Council v Kozik (2022) 11 QR 524
Redland
City Council v Kozik & Others (2024) 418 ALR 1
Street v State of
Western Australia [2024] FCA 1368
Williams & Kersten Pty Ltd v
National Australia Bank Ltd (No 5) [2025] FCA 155
Judgment (149 paragraphs)
[1]
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - CLASS ACTIONS OR GROUP PROCEEDINGS - COSTS - COSTS OUT OF FUND OR PROPERTY - POWER OF COURT TO ORDER - where the plaintiffs were successful in their class action proceeding against the defendant and judgment was delivered in their favour in 2021 for a sum of $3.79 million - where the 2021 judgment was appealed and the appeals dismissed in both the Queensland Court of Appeal and the High Court of Australia - where the plaintiffs obtained costs orders in their favour in all three proceedings - where the plaintiffs now seek distribution of the monies to Group Members in respect of the judgment sum and interest and costs on the judgment sum - where the plaintiffs seek costs in respect of a period for which there has no costs order, that is from 14 March 2024 onwards following the High Court's judgment - where a common fund order was made in 2019 - where the common fund order requires the plaintiffs to seek a determination of the amounts to be paid to the litigation funder (intervener) prior to any distribution - whether the distribution should be made in the scheme contended for by the plaintiffs, that is broadly, by the "resolution sum" less approved deductions being paid by the defendant to the plaintiffs' solicitors and distributed to Group Members thereafter under the common fund order - whether payment to the litigation funder (intervener) for commission ought to be deducted from the "resolution sum" prior to distribution - whether the defendant ought to pay the plaintiffs' costs following 14 March 2024 and whether those costs ought to be fixed
Australian Securities and Investments Commission v Atlantic 3 (Financial Aust) Pty Ltd (No 3) [2008] QSC 9; [2008] 2 Qd R 298
[5]
Blairgowrie Trading Ltd and Another v Allco Finance Group Ltd (ACN 007 721 129) (recs and mgrs. apptd) (in liq) and Others (No 3)[2017] FCA 330; (2017) 343 ALR 476
Williams & Kersten Pty Ltd v National Australia Bank Ltd (No 5)[2025] FCA 155
[16]
[1] This application pertains to the resolution of various issues regarding interest, costs and disbursements in a class action which was brought by the plaintiffs against the Redland City Council.
[2] The plaintiffs were successful in their proceeding and judgment was delivered in their favour by Justice Bradley (as his Honour then was) on 30 September 2021 for a sum of $3.79 million.[1] The terms of Justice Bradley's order of that date were as follows:
[17]
Pursuant to s 103X of the Civil Proceedings Act 2011 (Qld), the group members affected by this judgment are registered owners of rateable land, including building units, in the Redland City local government area who paid the Raby Bay Tidal Works (Community Title Scheme) Special Charge, Raby Bay Marina Special Charge, the Aquatic Paradise Marina Special Charge, the Aquatic Paradise Special Charge, or the Sovereign Waters Lake Special Charge levied by the defendant between 2011 and July 2016, excluding:
[18]
(a) related bodies corporate, associated entities and officers of the defendant;
(b) judges of this court;
(c) officers, employees, and legal practitioners of or engaged by the solicitors for plaintiffs; and
group members are entitled to recovery from the defendant of the unrefunded amount of the special charges so levied.
[21]
Pursuant to s.103V(1)(a) and (b) of the Civil Proceedings Act, the answers to common questions of law and fact are determined between the plaintiffs, group members and the defendant, in terms of the schedule hereto.
(a) for damages, in an aggregated amount in respect of the plaintiffs and group members, in the sum of $3,791,536.80 (judgment sum);
(b) interest pursuant to s.58 of the Civil Proceedings Act on the judgment sum to the date of these orders, and any such s. 58 interest to be agreed and made the subject of a consent judgment, or in default of agreement, be assessed and adjudicated upon further hearing (interest adjudication).
[23]
Pursuant to s. 59 of the Civil Proceedings Act, the time for payment of interest thereunder on the judgment sum is extended to 28 days from the date of these orders, but if not paid within such time interest thereon accrues and is payable by the defendant thereunder from the date of these orders to the date of payment thereof.
In the event the defendant files a notice of appeal in respect of these orders (including the judgment sum):
[24]
(a) the payment of the judgment sum and any interest adjudication is stayed until final judgment or other order of the Court of Appeal;
(b) subject to judgment sum and any interest adjudication being set aside by or other order of the Court of Appeal, under s. 59 of the Civil Proceedings Act the defendant pay interest on the judgment sum from the date of these orders to the date of payment thereof, and on any interest adjudication from the date of such adjudication to the date of the payment thereof.
[25]
If the Defendant does not file a notice of appeal in respect of these orders, the judgment sum is payable in 28 days from the date of this order.
The defendant pay the plaintiffs' costs of the proceeding on the standard basis to and including 10 September 2020 and thereafter on the indemnity basis.
[26]
9. The judgment sum, any adjudicated interest and costs:
[27]
(a) subject to Order 6 above or further order, be discharged by the defendant by payment to Shine Lawyers, as solicitors for the plaintiffs and group members, whose receipt therefor shall be a sufficient discharge to the defendant;
(b) shall be held by the solicitors for the plaintiffs and group members on trust to be invested in an interest-bearing Australian bank account on short-term investment;
(c) shall not be disbursed by such solicitors except by order of the Court.
[28]
The proceeding be adjourned to a date to fixed to enable adjudication of interest under Order 4(b) above and any consequential matters and other matters required under Part 13A of Civil Proceedings Act to be heard and determined.
The parties have liberty to apply.
[29]
[3] An appeal against the decision of Justice Bradley was dismissed, although the Court of Appeal would have upheld the matter on different grounds.[2] An appeal to the High Court of Australia was likewise dismissed.[3]
[4] In addition to orders for interest on the judgment sum, the plaintiffs also obtained cost orders in their favour in all three proceedings.
[5] For the purpose of bringing the proceeding to its conclusion, including for the distribution of the monies to the Group Members, the plaintiffs bring this application.
[6] There are effectively five issues to be decided.
[7] The first order which the plaintiffs seek is in respect of a settlement of the Council's liability to pay interest and costs on the judgment sum.
[8] The second issue pertains to the scheme of distribution.
[9] The third issue pertains to questions about various deductions to be made from the Resolution Sum.
[10] The fourth issue is in respect of a period for which there has been no costs order, being 14 March 2024 onwards, but for which the plaintiffs seek their costs on the basis that the plaintiffs have an entitlement to those costs, and, as part of that order, an order that those costs be fixed.
[11] The fifth issue is in relation to how the funds ought to be distributed amongst the Group Members, but specifically involves a question about the costs of the distribution scheme.
[30]
[12] Before turning to consider those five issues, it is appropriate to briefly record the position of the other parties to the application.
[13] The Council has an interest in the issues which the plaintiffs describe as issues one, four and five, being:
[31]
(a) Issue 1, the court's approval of the settlement of interest and costs, and in respect of that the Council appeared in support of that approval;
(b) Issue 4, being an order that the Council pay the plaintiffs' costs from 14 March 2024 onwards, and in a fixed amount, the Council opposed that order;
(c) Issue 5 being that the Council pays the costs of administering the distributions scheme, and the Council opposed that order.
[32]
[14] The court also received submissions from the intervening party, Augusta, whose submissions were limited to two aspects only of the plaintiffs' application. Both pertain to what I describe as the third issue, being deductions from the Resolutions Sum. The first deduction relates to Augusta's right to be reimbursed for professional fees and disbursements paid in the amount of $1,192,314, and the second deduction is in respect of Augusta's claim for commission in the sum of $1,435,134.20.
[15] Neither the plaintiffs nor the Council opposed either aspect of Augusta's submissions.
[33]
[16] The plaintiffs each owned properties with frontage on to a waterway within the Redland City Local Government area. Under resolutions passed by the Council each year from 2011 to 2016, rates notices were issued to taxpayers, including the plaintiffs, that included 'Special Charges' to fund capital and operational expenditure on services relating to three canal or lakefront reserves. Some of those Special Charges were spent on the services in or before March 2017 before the Council became aware, that the resolutions were invalid for non-compliance with certain statutory requirements. In late 2017 the Council refunded to ratepayers their respective share of unspent Special Charges. To recover the spent (that is the unrefunded) portion, the plaintiffs commenced a proceeding pursuing claims in debt and restitution.
[17] Group Members were registered owners of rateable land in that local government area who paid the Special Charges.
[18] There were 1,055 properties which were the subject of the Special Charges levied by the Council. There were over 2,200 Group Members, but 652 Group Members opted out of the proceedings. Ultimately there were approximately 1,620 Group Members remaining, in respect of whom the unrefunded portion of the Special Charges amounted to $3,791,536.80.
[19] Shine Lawyers, who ultimately became the solicitors for the plaintiffs, became aware of complaints from a number of ratepayers in relation to the Special Charges. Shine Lawyers carried out some investigation and concluded that 1,592 ratepayers had been charged the levy and that $12.596 million (before interest) remained unpaid. That information formed the basis of the class definition in the proceeding.
[20] Shine Lawyers held two "town hall" meetings, advertised, and wrote to affected ratepayers. By late November 2018, 182 ratepayers had registered their interest in a potential proceeding. Shine Lawyers did not engage in any further book building due to the substantial time and costs involved, and because the matter was considered to be a "small quantum" representative proceeding. Shine Lawyers filed a Common Fund Order (CFO) application seeking a CFO that would allow the proceeding to progress with an open class action without needing to sign up individual Group Members to costs agreements and funding agreements.
[21] Justice Boddice (as his Honour then was) made the CFO on 28 June 2019. The Council did not oppose the making of such an order.
[34]
Subjectto further Order, pursuantto sections 13 and 103ZA of the Civil Proceedings Act 2011 (Qld) (CPA) and upon the undertaking from Augusta Ventures Limited, the Plaintiff and Shine Lawyers to each other and to the Court as set out in Annexure 'B' to these Orders, an Order that the Plaintiff and Group Members shall pay from any Resolution Sum (as defined in the Funding Terms being Annexure 'A' to these orders) an amount to be determined by the Court and not exceeding the amounts calculated in accordance with clause 6 of the Funding Terms, prior to any distribution to Group Members (Common Fund Order)."
[35]
[23] Certain terms in the CFO required brief description:
[36]
(a) Annexure A referred to in the order was a document styled "Redland City Council Class Action: Funding Terms";
(b) the Resolution Sum was defined as follows:
[37]
"'Resolution Sum'means the amount or amounts of money for which (a) the Claims of the Plaintiff and/or the Group Members are Settled, or (b) judgment is given in favour of the Plaintiff and/or the Group Members in the Proceeding or in any subsequent proceeding brought by any Group Member against the Defendant in reliance on the findings made in any judgment in the Proceeding is Settled or for which judgment is given in favour of the Group Member and including (but not limited to) any interest and costs recovered pursuant to a Costs Order or by agreement"; and
[38]
(c) Augusta Ventures Limited was the litigation funder.
[39]
[24] The CFO therefore required the plaintiffs to seek a determination of the amounts to be paid to Augusta Ventures Limited from the Resolution Sum prior to any distribution. As a consequence, this application was required to obtain those relevant determinations, and, the plaintiffs contend, related determinations.
[25] I will return to some of the issues pertaining to the litigation funding in due course.
[26] Each of the plaintiffs entered into a costs agreement with Shine Lawyers as well as entered into a funding agreement with Augusta Ventures Limited, the terms of both of which were in evidence before me.
[40]
[27] Part 13A of the Civil Proceedings Act 2011 (Qld) (the CP Act) governs the bringing of representative proceedings in the Supreme Court of Queensland. A proceeding may be started under this Part: if seven or more persons have claims against the same person, the claims of all persons are in respect of, or arise out of, the same or similar related circumstances, and the claims for the persons give rise to a substantial common issue of law or fact.[4] The plaintiffs then conduct the proceedings on behalf of the Group Members, and Group Members have the right to opt out of the proceedings.[5]
[28] By s 103R of the CP Act, a representative proceeding may not be settled or discontinued without the approval of the court and, if giving that approval, the court may make any orders it "considers just for the distribution of money paid" whether by way of a settlement or a judgment.
[29] When giving a judgment, the court has wide powers under s 103V of the CP Act as follows:
[41]
(1) The court may do any 1 or more of the following in deciding a matter in a representative proceeding─
[42]
(e) make an award of damages for Group Members, sub-Group Members or individual Group Members, consisting of state amounts or amounts worked out in a stated way;
[43]
(f) award damages in an aggregate amount without stating amounts awarded in respect of individual Group Members;
[44]
(2) In making an order for an award of damages, the court must provide for the payment or distribution of the money to the Group Members entitled.
[45]
(3) Other than as provided under section 103R, the court must not make an award of damages as mentioned in subsection (1)(f) unless a reasonably accurate assessment can be made of the total amount to which Group Members are entitled under the judgment.
[46]
(4) If the court makes an order of the award of damages, the court may give any directions it considers just in relation to the way in which─
[47]
(a) a group member must establish the member's entitlement to share in the damages; and
[48]
(b) any dispute regarding the entitlement of a group member to share in the damages must be decided."
[49]
[30] In addition to deciding issues of fact or law, and making awards of damages, the court has a broad power to make any other order the court considers just. Furthermore, in making an award of damages, the court must provide for the payment of distribution of the money to the Group Members entitled.[6]
[31] Without limiting s 103V(2), in providing for the distribution of money to Group Members the court has broad powers under s 103W as follows:
(1) Without limiting section 103V(2), in providing for the distribution of money to Group Members, the court may provide for─
[52]
(a) the constitution and administration of a fund consisting of the money to distributed; and
[53]
(i) the payment by the defendant of a fixed sum of money into the fund; or
[54]
(ii) the payment by the defendant into the fund of instalments, on the conditions the court considers appropriate, to meet the claims of Group Members; and
[55]
(c) entitlements to interest earned on the money in the fund.
[56]
(2) The costs of administering the fund are to be borne by the fund or the defendant, as the court directs.
[57]
(3) If the court orders the constitution of a fund under subsection (1), the order must─
[58]
(a) require notice to be given to Group Members in the way stated in the order; and
[59]
(b) state the way in which a group member must make a claim for payment from the fund and establish the member's entitlement to the payment; and
[60]
(c) state a date, at least 6 months after the date on which the order is made, before which the Group Members must make a claim for payment from the fund; and
[61]
(d) provide for the date before which the fund must be distributed to Group Members who have established an entitlement to be paid from the fund.
[62]
(4) The court may, if it considers it just, allow a group member to make a claim after the date stated under subsection (3)(c) if the fund has not been fully distributed.
[63]
(5) On application by the defendant after the date provided for under subsection (3)(d), the court may make the orders it considers just for the payment from the fund to the defendant of the money remaining in the fund."
[64]
[32] Further provisions of importance include, first, s 103X which provides that in a judgment given in representative proceedings, the judgment must describe or otherwise identify the Group Members affected by it and binds those members. Second, s 103ZA is then a broad general power of the court to make orders, on its own initiative or on the application by a party or a group member, of any order the court considers "appropriate or necessary to ensure justice is done in the proceeding."
[33] When these legislative provisions are considered in their entirety, it can immediately be seen that the order of Justice Bradley of 30 September 2021 was, intentionally, not the final orders required for the distribution of the judgment sum. This is because by order 9, Justice Bradley ordered that the judgment sum, interest and costs, subject to a notice of appeal or further order, would be discharged by the Council's payment to Shine Lawyers, as solicitors for the plaintiffs and the Group Members but that sum should be held by Shine Lawyers on trust to be invested in an interest bearing Australian bank account on short-term investment, and not disbursed by Shine Lawyers except by order of the court.
[34] His Honour therefore expressly contemplated that the court would be required to make another order consistently with s 103V(1)(g), and particularly to make an order for the payment or distribution of the monies in accordance with s 103V(2).
[35] His Honour made a further order, at order 10, that the proceeding be adjourned to a date to be fixed to enable adjudication of the interest component "... and any consequential matters and other matters required under Part 13A of the Civil Proceedings Act to be heard and determined".
[36] Additionally, his Honour made an order for liberty to apply.
[37] These combinations of orders demonstrate that his Honour was aware of the provisions of Part 13A and the necessity to make a range of further orders in relation to the distribution of the damages, interest, and costs, but the making of those orders likely required a further application in order to ensure that justice was done in the proceeding. That justice necessarily required a significant amount of evidence in relation to the necessary disbursements to, for example, the litigation funder, the solicitors, and the Group Members, the determination of which could not proceed until either the avenues of appeal had been exhausted, or further orders were obtained, or both.
[65]
"In enacting Pt IVA of the [Federal Court Act], Parliament was introducing into Australian Law an entirely novel procedure. It was impossible to foresee all the issues that might arise in the operation of the Part. In order to avoid the necessity for frequent resort to Parliament for amendments to the legislation, it was obviously desirable to empower the Court to make orders necessary to resolve unforeseen difficulties; the only limitation being that the Court must think the order appropriate or necessary to ensure 'that justice is done in the proceeding'.
[66]
... The criterion 'justice is done', involves consideration of the position of all the parties. An order preventing unfairness to a particular party may be necessary to ensure justice is done in the proceeding."[10]
[67]
[39] Finally, pursuant to s 103ZC of the CP Act, the court also has a broad power in respect of the representative party's costs as follows:
[68]
"103ZCReimbursement of representative party's costs
[69]
(1) If the court makes an award of damages in a representative proceeding, any person who is or was a representative party or a sub-group representative party in the proceeding may apply to the court of an order under this section.
[70]
(2) If, on an application under this section, the court is satisfied the costs reasonably incurred in relation to the representative proceeding by the applicant are likely to exceed the costs recoverable by the applicant from the defendant, the court may order an amount equal to the whole or part of the excess be paid to the applicant out of the damages awarded.
[71]
(3) On an application under this section, the court may also make any other order it considers just."
[72]
[40] By this provision, the court has power not just to make orders for costs generally, but from where the burden of the costs may be paid, that is by the Council or out of the damages awarded, as well as the broad power to make any other order the court considers just.
[73]
Issue 1 - court's approval of the settlement of interest and costs
[74]
[41] No party opposes any aspect of the in-principle agreement which has been reached in respect of interest and costs.
[42] Interest has been agreed, subject to the court's approval, in the sum of $1,950,000. The amount of interest represented a compromise of the plaintiffs' entitlement to pre and post judgment interest up to 29 May 2024.
[43] Separately, the parties agreed to compromise all costs liabilities between them up to 13 March 2024 in the sum of $1,410,419.92.
[44] I have received, as is usual, a confidential advice from Counsel pertaining to the compromise in respect of interest and costs. I have carefully taken into account the matters set out in that advice, which advice is to be placed in a sealed envelope and marked "Not to be opened without an order of the court". In the context of the matters contained in that advice I am satisfied that the settlements of the interest components and costs represent fair and reasonable compromises in the interests of the Group Members. Additionally in circumstances where no components are challenged by any of the other parties to the proceedings, and consistent with the confidentiality attaching to the advice from Counsel, I am satisfied that the court ought to approve the settlement of interest and costs in the sums so identified.
[75]
[45] The plaintiffs have proposed a scheme for the distribution of the judgment proceeds, and require the court's approval in respect of that scheme.
[46] Under the scheme which is proposed, the Resolution Sum, which includes the approved amount as to interest and costs, as well as the Judgment Sum of $3,791,536.80, is to be paid by the Council to Shine Lawyers, as solicitors for the plaintiffs and the Group Members, within 14 days of the date of this court's orders. That sum is to be held by Shine Lawyers on the same terms as set out in order 9 of Justice Bradley's orders. Those amounts will then form part of the Resolution Sum within the meaning of the CFO made on 28 June 2019.
[47] The scheme will then provide for the Resolution Sum (within the meaning of the CFO) less approved deductions (to which I will return) be distributed to the Group Members in accordance with the terms that are set out in the Distribution Scheme which is exhibited to the affidavit of Ms Antzoulatos.
[48] The terms of the distribution scheme include the following aspects:
[76]
(a) Shine will be responsible for calculating each Group Member's entitlement by applying the proposed formula in the Distribution Scheme to each Group Member's unrefunded Special Charge;
(b) Shine will prepare and provide each Group Member with a distribution statement, which will outline their final judgment entitlement, including the information used to calculate it;
(c) Shine will liaise with Group Members to obtain updated contact details and banking information for all Group Members. Once received, Shine will conduct a verification process to confirm the accuracy of banking details before processing payments;
(d) Shine will handle correspondence and enquiries from Group Members including those relating to their individual entitlements, the operation of the Distribution Scheme and any procedural matters that may rise;
(e) Shine will coordinate the distribution of funds to eligible Group Members via electronic bank transfer or cheque. In the event that payments are rejected, remain unpresented, or eligible Group Members fail to provide necessary banking information to the administrator within two months from when the Distribution Statements are sent, their amounts will be forfeited and excluded, and form part of the residue amount;
(f) if Group Members' payments are rejected, remain unpresented or eligible Group Members' fail to provide necessary banking information to the administrator within two months from when the Distribution Statements are sent, such amounts shall form part of the residue and if the amount of the residue is such that the average distribution to the unexcluded Group Members would be less than $20, the residue amount will be donated to a charity chosen at the discretion of the administrator;
(g) Shine will send Distribution Statements to Group Members and will maintain records of distributions and provide a final report to the court on the Distribution Scheme; and
(h) the administration of the Distribution Scheme will be subject to the ongoing supervision of the court. Shine will take reasonable steps to ensure compliance with Distribution Scheme terms, and procedural requirements, including the finalisation of distributions and the appropriate closure of the scheme.
[77]
[49] So described, the scheme is one which, in my opinion, accords with the general principles for the approval of such a scheme as recorded in Blairgowrie Trading Ltd and Another v Allco Finance Group Ltd (ACN 007 721 129) (recs and mgrs. apptd) (in liq) and Others (No 3)[11] including:
[78]
(a) there is no single way in which a settlement should be framed, the ultimate question is whether both the proposed settlement, and the proposed scheme, fall within a range of reasonable outcomes;
(b) the court's role is not to second guess the strategic decisions made by the plaintiffs' legal representatives, but rather to satisfy itself that the decisions are within the reasonable range of potential decisions having regard to the circumstances which are known by, and reasonably knowable to, the plaintiffs and their legal representatives and that there has been a reasonable assessment of the relevant risks based on such circumstances;
(c) there is no definitive set of circumstances that must or may be taken into account in approving a settlement but factors relevant to an assessment of reasonableness include:
(i) the complexity and duration of the litigation;
(ii) the stage of the proceedings;
(iii) the risk of establishing liability, establishing damages and maintaining the class action;
(iv) the ability of the respondent to withstand a greater judgment than the prospective settlement sum;
(v) the range of reasonableness of settlement in light of the best recovery;
(vi) the range of reasonableness of settlement in light of all the risks of litigation; and
(vii) the reaction of the class to the settlement.
(d) in relation to the fairness of the settlement between the Group Members it must be ensured that the interests of the representative party, the signed-up clients, and any litigation funder are not being preferred over the interests of the Group Members (absent strong and compelling reasons for such preferential treatment) rather the Distribution Scheme should achieve a fair and equitable division of proceeds.
[79]
[50] Unlike many such cases, this case is not one in which the court needs to concern itself with the settlement itself, there being a judgment rather than a settlement. To the extent that there is a settlement in respect of interests and costs, I have already, in reliance upon the evidence and in particular Counsel's confidential advice, determined that those amounts are reasonable. Rather, the question here is whether the structure of the scheme itself is one which is fair and reasonable in all the circumstances.
[51] In the circumstances, having regard to the court's power to approve the scheme, I am satisfied that the scheme fairly and properly balances the interests of the Group Members, but also provides mechanisms by which there is some finality to the Distribution Scheme, as is necessary in all the circumstances. Two simple examples will suffice. If a Group Member cannot be contacted or does not respond to the administrator's communications then, after a period of time, the member will be excluded. As described, the administrator will have to make reasonable efforts to locate any Group Members for the purposes of ensuring they receive their proper entitlement, but if such a person cannot be located then in the interests of the broader group, and the finality of the scheme, the member is excluded so as to allow the scheme to be distributed. Similarly, where there are uncollected amounts because for example a cheque is not presented, or incorrect bank details are provided, then after reasonable efforts have been made, residue is to be distributed pro rata between the remaining Group Members and if the average distribution is less than $20 then the residue is donated to charity. Again, these are the essential features of the scheme to ensure fairness, but also finality.
[52] I am satisfied in the circumstances that the scheme is a proper one and ought to be approved.
[80]
Issue 3 - the amounts to be deducted prior to distribution
[81]
[53] The power to make deductions arises under s 103V of the CP Act which I have set out at paragraph [29] above. However, in addition to the judgment sum, there are also some components of the damages which are subject to settlement, and in that respect, I refer principally to the interests and costs which I have already dealt with above. The power here to make orders, or more correctly give approval, in relation to deductions arises under s 103R which provides as follows:
[82]
(1) A representative proceeding may not be settled or discontinued without the approval of the court.
[83]
(2) If the court gives approval under subsection (1), it may make any orders it considers just for the distribution of money paid under a settlement or paid into the court."
[84]
[54] Further power arises under s 103ZC, so far as approval is sought to deduct costs reasonably incurred but which are unrecoverable from the Council. Section 103ZC provides as follows:
[85]
"103ZC Reimbursement of representative party's costs
[86]
(1) If the court makes an award of damages in a representative proceeding, any person who is or was a representative party or a sub-group representative party in the proceeding may apply to the court for an order under this section.
[87]
(2) If, on an application under this section, the court is satisfied the costs reasonably incurred in relation to the representative proceeding by the applicant are likely to exceed the costs recoverable by the applicant from the defendant, the court may order an amount equal to the whole or part of the excess be paid to the applicant out of the damages awarded.
[88]
(3) On an application under this section, the court may also make any other order it considers just."
[89]
[55] Additionally, as I set out at paragraph [32] above, there is a further broad general power under s 103ZA of the CP Act, to make any orders that the court considers appropriate or necessary to ensure that justice is done in the proceeding. Necessarily that includes the power to make an order in respect of reasonably incurred deductions.
[56] I deal with each of the deductions in turn.
[57] The first deduction is a payment to the Intervener, Augusta, for commission. The amount sought is the sum of $1,435,134.20 (being 25 per cent of the judgment sum plus agreed interest).
[58] In Court v Spotless Group Holdings Ltd,[12] Murphy J described the costs and the risks assumed by litigation funders in the ordinary course of litigation funding as follows:
[90]
"In class action litigation the fundamental obligations of a commercial third-party litigation funder (usually) include paying the applicant's legal costs and disbursements, putting up security for costs, and indemnifying the applicant and group members in relation to any adverse costs order. In return the funder is entitled, upon success in the proceeding, to:
[91]
(a) reimbursement of the legal costs and disbursements it has paid;
[92]
(b) the return of the security for costs it has advanced; and
[93]
(c) a funding commission in consideration of the costs and risks it took on."[13]
[94]
[59] The terms of the funding arrangement were in evidence before me. In summary, the funder was obliged to fund the Project Costs of the plaintiffs and the Group Members which included an obligation to pay the lawyers legal costs and disbursements, pay for the cost of any ATE insurance or any deed of indemnity required, pay the costs of any cost order which the court may make in the proceeding against a plaintiff or Group Member in favour of the defendant, and finally providing the necessary security for costs.
[60] The order then provided that, subject to any further order, the lawyers for the plaintiffs and the Group Members would, in priority to any other payment, pay the funder its costs and commission first, being the Project Costs as defined. It follows therefore that the funder takes on obligations to fund the project costs, including the legal costs and disbursements, the costs involved in the provision of security for costs, the costs of any adverse costs order, and insurance premiums.
[61] The claim for commission amounts to a sum of $1,435,134.20. It broadly reflects 24 per cent of the judgment sum or 18.8 per cent of the resolution sum.
[62] The Full Court of the Federal Court identified a non-exhaustive list of considerations which would be relevant for the court to consider when determining a reasonable funding commission rate in Money Max Int Pty Ltd (Trustee) v QBE Insurance Group Ltd[14] where the court said:
[95]
"We do not seek to and cannot predetermine the relevant considerations for the approval of a reasonable funding commission rate. They will be a matter for the judge hearing the approval application and it will depend upon the circumstances. However, it seems likely that the relevant considerations would include the following:
[96]
(a) the funding commission rate agreed by sophisticated class members and the number of such class members who agreed. That can be said to show acceptance of a particular rate by astute class members;
[97]
(b) the information provided to class members as to the funding commission. That may be important to understand the extent to which class members were informed when agreeing to the funding commission rate;
[98]
(c) a comparison of the funding commission with funding commissions in other Pt IVA proceedings and/or what is available or common in the market. It will be relevant to know the broad parameters of the funding commission rates available in the market;
[99]
(d) the litigation risks of providing funding in the proceeding. This is a critical factor and the assessment must avoid the risk of hindsight bias and recognise that the funder took on those risks at the commencement of the proceeding;
[100]
(e) the quantum of adverse costs exposure that the funder assumed. This is another important factor and the assessment must recognise that the funder assumed that risk at the commencement of the proceeding;
[101]
(f) the legal costs expended and to be expended, and the security for costs provided, by the funder;
[102]
(g) the amount of any settlement or judgment. This could be of particular significance when a very large or very small settlement or judgment is obtained. The aggregate commission received will be a product of the commission rate and the amount of settlement or judgment. It will be important to ensure that the aggregate commission received is proportionate to the amount sought and recovered in the proceeding and the risks assumed by the funder;
[103]
(h) any substantial objections made by class members in relation to any litigation funding charges. This may reveal concerns not otherwise apparent to the Court; and
[104]
(i) class members' likely recovery 'in hand' under any pre-existing funding arrangements."
[105]
[63] Murphy J in Court v Spotless Group Holdings Ltd,[15] went on at [82] to observe:
[106]
"In Money Max Int Pty Ltd (Trustee) v QBE Insurance Group Limited[2016] FCAFC 148; (2016) 338 ALR 188 at [80] (Murphy, Gleeson and Beach JJ), although in a different context, the Full Court set out a non-exhaustive list of factors relevant to assessing the reasonableness of a proposed funding commission. I have had regard to those factors. After having taken all relevant factors into account the Full Court said (at [82]) that it expected that the courts:
[107]
...will approve funding commission rates that avoid excessive or disproportionate charges to class members but which recognise the important role of litigation funding in providing access to justice, are commercially realistic and properly reflect the costs and risks taken by the funder, and which avoid hindsight bias.
[108]
In Kuterba v Sirtex Medical Limited (No 3)[2019] FCA 1374 at [12] Beach J said, and I respectfully agree, that the approval of funding commission rates should not become a "race to the bottom" and funding rates should provide an appropriate reward for the risk undertaken by a litigation funder."
[109]
[64] The Intervener submitted that the following considerations were particularly relevant in the circumstances of this case.
[65] Dealing first with the litigation risks, I have had the benefit of numerous advices from counsel throughout the course of the proceeding which identified, at different stages, the litigation risks as were perceived from time to time. Each of those advices have been placed in a sealed envelope and marked "Not to be opened without an order of the court". A fair summary of those advices reveal that the litigation was one which came with uncertain prospects of success. It is enough to identify, by way of example, that when the primary Judge's decision was appealed, the Court of Appeal was split two to one, whilst the decision in the High Court was split three to two. Plainly enough, the outcome was very finely balanced, meaning that there were significant litigation risks at each step of the matter. Because of those significant risks, the funder could not be assured that it was going to obtain a return on its investment. That matter takes on further significance when it is remembered that the litigation funder also bore a risk in terms of an adverse costs order.
[66] When leave to appeal to the High Court was granted, the funder withdrew its funding for Shine's legal costs, but continued to fund disbursements. At that point, Shine funded its own legal costs, but the funder continued to remain at risk in terms of disbursements (including counsel's fees) and the risk of an adverse costs order.
[67] That risk became even greater when after about February 2021 the funder was unable to obtain insurance for the full amount of the estimated adverse costs risk, and therefore became exposed to a risk of some $150,000 for which it was uninsured. That uninsured risk grew, and, over the life of the matter, the funder bore an adverse costs risk estimated to be in the amount of some $730,000.
[68] The funder's risks in relation to litigation risks generally, adverse costs orders and uninsured risks are all significant matters to take into account when considering the size of the commission which is sought.
[69] As can be seen from the numerous judgments, primarily in the Federal Court but also in the New South Wales and Victorian Supreme Courts, it is not particularly common for class actions to proceed to judgment, let alone to judgment in the High Court. Far and away the majority of the reported cases deal with settlements, and claims for commission in the context of settlements, rather than judgments. The judgments here, and the finely balanced judgments in the Court of Appeal and the High Court, all point, in my view, to the very substantial litigation risks which affected this particularly matter. Therefore, whilst the proportion of the commission, some $1.4 million, as against the judgment sum of almost $3.8 million seems significant, in my view the better comparison in fact is against the amount of the judgment sum plus interest as agreed and accrued, a figure around $5.9 million. As against the total Resolution Sum, the commission claimed is about 19.8 per cent.
[110]
"... a helpful summary of the key parameters drawn from other settlement approvals in recent years, bearing in mind that 'it is appropriate to be cautious in comparing the headline funding rates approved in other cases': Galactic Seven Eleven Litigation Holdings LLC v Davaria[2024] FCAFC 54; (2024) 302 FCR 493 (at 516-527 [89] per Murphy J)."[18]
[111]
[72] I respectfully agree that the summary contained in Street's case is a helpful summary, although caution must be exercised because each case is quite different. Here, in particular, the significant difference is that this was not a settlement but rather a judgment contested, to the highest levels.
[73] Having carefully reviewed the comparative authorities, I am satisfied, first, that the commission sought by the funder is within the range of that which has been approved in a large number of authorities, primarily in the Federal Court, but also in the State courts of New South Wales and Victoria, and second, that the commission is, in any event, fair recompense for the risks assumed.
[74] Other matters which I take into account for the purposes of approving the commission include:
[112]
(a) the amount which the intervener is entitled to claim under the terms of the funding arrangement is in fact higher than that which is being claimed; and
(b) notice has been given to the Group Members of the commission, accompanied by information as to the process of objection. Only two objections were made, one of which has now been withdrawn. The one remaining objection which asserted that the commission "appears quite high" is certainly an objection properly made, but in my view of limited weight when a comparison is made with actual commission awarded in other cases.
[113]
[75] I am satisfied that the claim for commission is fair and reasonable in the circumstances.
[76] The other disbursement which the intervener seeks is reimbursement of the legal fees and disbursements that have been paid out in the amount of $1,102,214. It is unnecessary to say very much about the reimbursement. Reimbursements are for costs and outlays that have been paid by the intervener. Those amounts having been recovered by way of costs and outlays, it is appropriate that they be reimbursed. Reimbursement plainly forms part of the terms of the litigation funding arrangement and it is appropriate to approve those sums. No party opposes that course.
[77] Finally, there is an amount to be paid to the plaintiffs to compensate them for the time and expenditure in prosecuting the claim on behalf of the group. No party opposed those sums, and they are appropriate deductions, so I make those orders at paragraph [130(7)(c)] of this judgment, with a reduction as to the amount sought.
[78] Mr Kozik, in particular, spent a substantial amount of time in conference or by telephone, with the solicitors to prepare his affidavit evidence, and in preparation for cross-examination. He was present for three days at the hearing before Justice Bradley and was cross-examined. His involvement, in particular, extended over many years since 2018. Such persons who have sacrificed time and incurred expenses, ought to be entitled to some remuneration.[19]
[79] Nevertheless, the amounts sought are high, having regard to the judgment sum and comparative cases. I award $10,000 for the first plaintiff, $5,000 together for the second and third plaintiffs, and $5,000 for the fourth plaintiff.
[114]
Issue 4 - an order that the Council pay the plaintiffs' costs since 14 March 2024, and that those costs be fixed.
[115]
[80] There are two issues to be determined here. The first is whether a further order for costs should be made for the period 14 March 2024 (being the date after the High Court delivered its judgment) onwards, and if so, the second question is whether those costs ought to be fixed or assessed.
[81] As to the first issue, the Council submits that the general rule about costs contained in r 681 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) is that the costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event unless the court otherwise orders.
[82] The phrase "costs of a proceeding" is not defined in the UCPR although the phrase "costs of the proceeding" is defined in r 679 to mean costs of all issues in the proceeding and includes:
[116]
(a) costs orders to be costs of the proceeding;
(b) costs of complying with the necessary steps before starting the proceeding; and
(c) costs incurred before or after the start of the proceeding for successful or unsuccessful negotiations for settlement of the dispute.
[117]
[83] Whilst the Council accepts that some of the costs being sought for the period 14 March 2024 onwards are costs pertaining to the settlement of matters such as interest and costs, which would more readily fall within the meaning of "costs of the proceeding", the Council submits that other of the costs being sought from 14 March 2024 onwards are outside the reach of the ordinary order for costs. The Council therefore submits that there is no power to order costs of that kind because they are not "costs of the proceeding" within the meaning of the rule; but even if that is not correct, then in the exercise of the court's discretion the court would not order that the Council pay the entirety of those costs.
[84] The Council submits that because there is no substantive proceeding any longer on foot, the High Court having dismissed the appeal, the work that has been carried out since the High Court delivered its judgment is outside the context of "the proceeding" as it is properly comprehended by the use of that terminology in the UCPR.
[85] I do not accept the Council's submission because although the substantive proceeding was dealt with by the High Court, several matters remained to be dealt with under Justice Bradley's order. Under the terms of that order, the judgment sum, interest and costs were to be held in an interest-bearing bank account, not to be disbursed except by order of the court. The parties were always required to come back before the court for the resolution of those outstanding issues. Necessarily that includes determination of issues such as costs, disbursements, interest and general administration of the fund.
[86] There is evidence which satisfies me that those other costs which are sought to be recovered from 14 March 2024 onwards are reasonable, primarily contained in the affidavit of the solicitor on behalf of the plaintiffs, Ms Antzoulatos, and also in the independent costs assessment obtained from Ms Ryan, costs consultant, dated 18 March 2025 and 24 April 2025.
[87] I return to the issue of the quantum of the assessment by Ms Ryan shortly. Ms Ryan records in her first report that she had been asked to "consider the reasonableness of the costs incurred on behalf of (the plaintiffs) in the period post High Court judgment from 14 March 2024 (onwards)." In performing that exercise, Ms Ryan considered the nature of the work which she described in Attachment E to her report as follows:
[118]
"With delivery of the High Court judgment on 13 March 2024 the work undertaken by Shine thereafter relates to the common fund order application, Group Member notice, distribution, negotiations with respect to interest on the judgment, costs negotiation and costs recovery work."
[119]
[88] A review of the itemised accounts shows the work undertaken by Shine as follows:
[120]
(a) reviewing High Court judgment;
(b) preparation of a memorandum on enforcement procedures;
(c) briefing and conferring with counsel re: distribution of funds, costs, common fund order, interest calculations, pre-judgment interest;
(d) reviewing and considering legislation;
(e) reviewing previous orders and considering next steps re: interest and costs;
(f) liaising with Council's solicitors in relation to payment of the judgment sum;
(g) drafting and settling notices to Group Members;
(h) liaising with counsel generally i.e. drafting/preparation of order February 2025 and attending to matters set out therein re: common fund order, notification of common fund order to Group Members;
(i) drafting/preparation of affidavit of Vicky Antzoulatos;
(j) instructing Ms Ryan to advise in relation to party/party recovery including provision of data and material to Ms Ryan and responding to queries;
(k) forwarding information to Group Members and funder;
(l) liaising with the court and counsel regarding the timetable;
(m) reviewing party/party costs advices re: trial, appeal and High Court;
(n) liaising with DGT and Gadens re: party/party costs and negotiating the settlement of party/party costs;
(o) preparing information and instructing Ms Ryan to prepare report; and
(p) preparing submissions and evidence as per the orders of 25 February 2025.
[121]
[89] Ms Ryan was not required for cross-examination and there was therefore no issue taken with her evidence that the itemised accounts in fact showed the work which had been undertaken by Shine, and that it matched the description contained in her report. Additionally, the itemised accounts were produced to the Council, who had the opportunity to satisfy itself in relation to the correctness of those accounts, and again no issue was taken with the information contained in the accounts.
[90] It can be accepted therefore that the summary of the matters contained in Ms Ryan's report, and as set in Attachment E to her first report, accurately reflected the work which had been done after the delivery of the High Court judgment and before the return of the matter before me.
[91] I am satisfied that the matters contained in Attachment E and set out above are ones which are so closely connected to the substantive proceedings, and further directed to the further orders which Justice Bradley anticipated in his order of September 2021, that those costs are ones which are sufficiently related to the proceedings that they will be encompassed by the phrase "costs of the proceedings" as is contained in the UCPR.
[92] Furthermore, I take into account that Ms Ryan excluded certain costs. She formed a view regarding a body of work which had been carried out by Shine that she did not consider to be fair and reasonable, as the work related to matters which pertaining to Shine's obligations under the Legal Profession Act 2007 (Qld), all being related to costs incurred responding to queries from the Funder and/or the lead applicant. Ms Ryan described the following non-exhaustive list of work which she excluded from her assessment to include:
[122]
(a) preparing an appeal budget;
(b) determining outstanding funds in Shine's trust account;
(c) updating appeal budgets;
(d) considering other funding issues or arrangements with Augusta; and
(e) drawing of costs disclosure letters, reviewing costs agreements and funding agreements and the like.
[123]
[93] Again, because Ms Ryan was not required for cross-examination, there was no challenge to the breadth of the matters which she sought to exclude from her cost assessment.
[94] Ms Ryan's report also identified that there were a range of other matters which Ms Ryan did not include in her assessment. That involved examples such as where work undertaken was entangled with other work in the narrations such that it was impossible to be precise about the amount of costs actually incurred for the tasks which were properly recoverable. Other examples included duplication of internal communications, supervisions, and instructions which she did not consider were recoverable against the Council. Other examples Ms Ryan identified of solicitors undertaking work that could reasonably be performed by a clerk or a paralegal at lower hourly rates had likewise been excluded or reduced. After considering the range of matters which might not be recoverable, Ms Ryan concluded:
[124]
"As it is not possible or appropriate to make specific reductions to the costs to account for the matters outlined above, I apply an overall reduction of 5% to the professional fees incurred to account for costs that do not appear to me to have been reasonably incurred. I apply this to the work done in the period February 2018 to 13 March 2024 to 7 March 2025."
[125]
[95] Ms Ryan thereafter applied that reduction, relevantly, to the assessment of costs from 14 March 2024 onwards.
[96] Having regard to the evidence, and the fact that Ms Ryan was not challenged in relation to it, I am satisfied that the work which Ms Ryan has assessed from 14 March 2024 onwards is, subject to the proper calculation of the costs, the type of work generally which the Council ought to be ordered to pay. It is work which is so closely connected to the proceeding that it is properly covered by the term "the proceeding" as it appears in the UCPR.
[97] That does not however mean that I ought to be slavish to the assessment of fixing the costs in accordance with Ms Ryan's opinion. That is because, when it comes to fixing costs, the power to make such an order should only be exercised when the court considers it can do so fairly between the parties, which includes the provision of sufficient evidence in arriving at an appropriate sum on the material available.
[98] The court must therefore ask itself, firstly, whether it should fix the costs ordered to be paid pursuant to a costs order, and if the answer is yes, then the second step is to determine the amount of those fixed costs. The purpose of making such an order is to save the parties the time, trouble, delay, expense and aggravation of protracted litigation arising out of the taxation.[20]
[99] For the reasons which I set out below I consider it is appropriate for the court to fix costs in the circumstances of this case and to proceed to the second step of determining those costs.
[100] First, this litigation has been on foot for a lengthy period of time, the CFO having been made by Justice Boddice in 2017. The matter is therefore into its ninth year, and issues of finality of the litigation are uppermost in mind when approaching the matter as fairly as possible, balancing the interests of all the parties.
[101] Second, relative to the overall length of the matter, the period in question is relatively small, covering only the year or so since the High Court delivered its judgment.
[102] Third, the lion's share of the work carried out since the High Court delivered its judgment has been of an administrative nature, rather than a strictly a legal one, the work being directed towards the final distribution of the resolution sum, the payment of costs, the refunding of the funder's claims etc. Whilst administrative in character, those matters are nevertheless exquisitely related to the underlying legal issues and it would be difficult, in my view, on a question of taxation to disentangle some of the administrative issues from the more strictly legal issues. It is not in anyone's interests that a taxation proceed in relation to those questions.
[126]
Issue 5 - order that the Council pay the costs of administering the distribution scheme
[127]
[117] This issue pertains to whether the Council ought to pay the costs associated with the establishment and administration of the Distribution Scheme, or whether the costs associated with that ought to be borne by the Resolution Sum.
[118] Originally it was thought that the Council might be able to attend to the administration of the distribution scheme, relatively seamlessly and with incurring little cost. It was thought this could be done through the Council's existing rates scheme. Factually, I am satisfied that that procedure is no longer available and, to the extent that there appears to have been a misunderstanding between the parties about the Council's ability to attend to the distribution without any particular expense, no party is particularly responsible for that misunderstanding.
[119] Ultimately it can be accepted that a distribution scheme needs to be established, an appropriate person needs to be identified as the administrator for the purposes of conducting this scheme, and that there will be costs associated with the administration of the scheme. The real issue is the determination of who bears the costs of the scheme and why.
[120] The plaintiffs submit that the Council ought to bear the full, reasonable cost of administering this distribution scheme because the plaintiffs were successful in the proceeding against the Council, and the cost associated with administering the scheme is therefore related to the success of the proceedings. The plaintiffs rely upon the power in:
[128]
(a) s 103V(2) of the CP Act that the court must provide "for the payment or distribution of the money to the Group Members entitled";
(b) s 103ZB of the CP Act that a court may order a party to "pay costs" - on the basis that that section is not limited to legal costs but broadly covers any costs; and
(c) s 103ZA of the CP Act which includes the general power of the court to make any order which the court considers "appropriate or necessary to ensure justice is done in the proceeding".
[129]
[121] The Council accepted that those provisions do not preclude the sort of costs order which the plaintiff sought in relation to the costs of the distribution scheme, but as to the exercise of the discretion as to whether the court should so order the defendant to pay those costs, the Council made the following submissions.
[122] Justice Bradley's order of 30 September 2021 at paragraph [9(a)] provided:
[130]
"9. The judgment sum, any adjudicated interest and costs:
[131]
(a) subject to Order 6 above or further order, be discharged by the defendant by payment to Shine Lawyers, as solicitors for the plaintiffs and group members, whose receipt therefor(e) shall be a sufficient discharge to the defendant;"
[132]
[123] The Council submits that the effect of order 9(a) is that once the judgment sum, interest and costs have been paid, the Council is not obliged to make any further payments, the words "...whose receipt therefor(e) shall be a sufficient discharge" meaning the Council has no further liability to pay more.
[124] That submission simply cannot stand in the face of the words at the beginning of order 9(a) "subject to...further order ..."
[125] Furthermore, the terms of order 10 of his Honour's order on the same day adjourning the matter to a date to be fixed and for any consequential matters to be heard and determined at a later time, plainly leads to the conclusion that his Honour's orders were not intended to be exhaustive so far as the Council's possible obligation for further costs. The orders were always subject to further order, and in particular orders regarding disbursement, deductions and similar considerations.
[126] The Council's second submission was that because interest had been earned on the judgment sum since it was paid by the Council over a year ago, and the interest itself amounts to some $151,000 then the interest component ought to cover the costs associated with the administration scheme.
[127] I reject that analysis. Interest is intended to be compensatory for the plaintiffs having been kept out of the money between the date the payment was made and the time the monies are actually distributed. It is not intended to defray a cost otherwise reasonably incurred, and directly related to the distribution of the monies to Group Members.
[128] Furthermore, the Council accepted that Justice Bradley could have made an order regarding the costs of distribution at the time of his Honour's judgment in the same way that the court now can make an order as to where the burden of the administration ought to fall, so the delay between the original order and this application is of no relevance.
[129] The Council's real submission is that the justice of the case does not require that the Council pay the costs of administration of the fund. I do not accept that submission. The plaintiffs were successful in obtaining a judgment against the Council. If there is a cost of administering the distribution of the fund then the Council should, in the interests of justice, bear that cost. The administration of the fund would not have been necessary had the Council not failed to refund the monies in the first place. The plaintiffs were put to the time, trouble and expense of bringing proceedings against the Council, which proceedings were entirely successful. The Council must bear the costs of administration of the fund.
[133]
[130] I therefore make the following orders: -
Pursuant to s 103R(1) of the of the CP Act, the settlement between the plaintiffs and the defendant of the defendant's liability pay interest, under orders 4(b), 5 and 6(b) of the orders made on 30 September 2021 (2021 Orders), on the judgment sum, as defined in order 4(a) of the 2021 Orders, in the amount of $1,950,000.00, as set out in the exchange of emails between the plaintiffs' solicitors and the defendant's solicitor on 23 August 2024 and 4 September 2024, be approved.
Pursuant to s 103R(1) of the CP Act, the settlement between the plaintiffs and the defendant of the defendant's liability to pay costs of the plaintiffs' incurred up to 14 March 2024 and under:
order 8 of the 2021 Orders;
order 5 of the orders made by the Court of Appeal of the Supreme Court of Queensland on 26 August 2022 in appeal no. 11735/21;
orders 1 and 3 of the orders made by the High Court of Australia on 13 March 2024 in proceeding no. B17/2023; and
in the amount of $1,410,419.92, as set out in the exchange or correspondence between the plaintiffs' solicitors and the defendant's solicitor on 21 October 2024 and 31 October 2024, be approved.
The amounts in orders 1 and 2 shall:
be paid by the defendant to Shine Lawyers, as solicitors for the plaintiffs and Group Members, within 14 days of the date of these orders;
be held by Shine Lawyers on the same terms as set out in order 9 of the 2021 Orders;
form part of the Resolution Sum within the meaning of the orders made on 28 June 2019 (2019 Orders)
Pursuant to s 15 of the Act and r 681(1) of the UCPR, the defendant pay the plaintiffs' costs of the proceeding from 14 March 2024, be fixed in the amount of $300,000.00 under r 687(2)(c) of the UCPR.
Pursuant to s 103V(2) of the CP Act:
The Resolution Sum (within the meaning of the 2019 Orders) less approved deductions be distributed to Group Members in accordance with terms set out in the Distribution Scheme exhibited at pages 231-242 of Exhibit VA1 to the affidavit of Vicky Antzoulatos dated 19 March 2025 ();
[38] In BMW Australia Ltd v Brewster,[7] Kiefel CJ, Bell and Keane JJ said, speaking of the s 103ZA equivalent provision of the Federal Court of Australia Act 1976 (Cth) that the power conferred by the provision is broad, but it is essentially supplementary, and the words of limitation in it should not be ignored.[8] Their Honours referred favourably to a decision of Wilcox J in McMullin v ICI Australia Operations Pty Ltd[9] where his Honour said:
[70] Furthermore, the evidence Mr Aylward of Shine Lawyers was that it would not have been possible for the class action to have been commenced without the litigation funding. Other funders who Shine approached to gauge their interest in funding refused involvement because the potential quantum of the claim involved was not large enough. It can be accepted therefore that the class action would not have been able to be pursued at all but for the intervener's agreement to fund the litigation.
[71] It is helpful to have comparison to other cases in which commissions have been ordered in favour of litigation funders. The decision of Street v State of Western Australia[16] at Schedule 1 provides a comparative table of numerous authorities in relation to this issue. Justice Lee in Williams & Kersten Pty Ltd v National Australia Bank Ltd (No 5)[17] described the comparative table as:
[103] Fourth, the likely length of further delay in having the file assessed and taxed could well add many, many months to the ultimate resolution of the proceeding, all of which means there is further delay in the distribution of the fund. When the plaintiffs have been without the monies involved for a period of more than nine years, it is necessary in the interests of justice that there be some end to this proceeding.
[104] Fifth, the fixing of costs will save the parties the time, trouble and delay of an assessment.
[105] Sixth, the fixing of costs will serve a broader purpose in the administration of justice by saving the court's precious resources in avoiding a protracted costs dispute.
[106] Seventh, I am satisfied that there is, generally, reliable evidence as to the quantum of the costs, a fact which I will return shortly.
[107] In those circumstances, I consider it is appropriate to fix the costs and so I turn to the second related question.
[108] The costs from 14 March 2024 onwards were assessed in two parts. Ms Ryan's first report covered the period from 14 March 2024 to 7 March 2025, and the supplementary report covered the period from 8 March 2025 to 11 April 2025. In respect of each period, Ms Ryan assessed both the solicitor and client costs as well as the party/party costs (being the terms that Ms Ryan used).
[109] For the first of those periods, on a solicitor and client basis, Ms Ryan assessed the costs to be a sum of $316,003.69 (of which $223,912.44 was professional costs and disbursements of $92,091.25). In the same period, Ms Ryan assessed the fair and reasonable amount for party and party costs to be a sum of $228,477.49.
[110] For the period 8 March 2025 to 30 April 2025, Ms Ryan concluded that the total costs and disbursements on a solicitor and own client basis amounted to a further sum of $156,280.92. The party/party assessment in respect of the same period was a sum of $119,655.36.
[111] The total amount of the party/party assessment of costs and outlays therefore from the date after the delivery of the High Court decision until the date of the application before me was a sum of $348,132.85.
[112] I accept that that sum seems very significant when compared to the party party costs in respect of the entire proceedings which, inclusive of outlays, amounts to a sum of approximately $1.4 million (approximately 25 per cent of the total party party fees).
[113] Given that the $1.4 million worth of fees was incurred over a period being the best part of a decade, and included a trial and two appeals, at first blush it is difficult to conceive that the costs of the administrative type duties to bring the matter to finalisation over the course of the last 12 months has a value broadly equivalent to about 25 per cent of the costs of the whole of the proceeding.
[114] Nevertheless, I am conscious that the preparation for the application for final orders has involved a very significant volume of relevant material.
[115] The only matter about which I had some reservation in terms of Ms Ryan's expert report is to the extent of the reduction which she made overall to the professional fees incurred because they did not appear to have been reasonably incurred, either because they suggested double-handling, nonchargeable time, inadvertent entanglement of work which was really nonchargeable with that which was, such that I have formed the view that the appropriate overall reduction ought to be higher than the five per cent which she had allowed. There being no alternative evidence however as to what the appropriate reduction ought to be, the court can do no better than to take something of a broad-brush approach to fixing the costs, recognising the overarching importance of the court doing justice between the parties. Part of the balance of doing such justice is to ensure, as far as possible, that the Council does not pay more than it ought to properly pay in respect of those costs. I also take into account a small mathematical error in one of Ms Ryan's reports whereby a figure has been wrongly transcribed, leading to a necessary $4,000.00 reduction in the fees which she has allowed.
[116] Doing the best I can in respect of the overall fairness of the assessment, and the fixing of the costs in the interests of both of the parties, I fix the costs for the period 14 March 2024 to date in the sum of $300,000.00
Distribution Scheme
Vicky Antzoulatos of Shine Lawyers be appointed to administer the Distribution Scheme;
The defendant pay the costs of administering the Distribution Scheme considered to be reasonable by an independent costs assessor, with the costs of such assessment to be paid by the defendant;
Until further order, the reasonable costs of administering the Distribution Scheme payable by the Defendant are not to exceed $200,000.00.
The Administrator has liberty to apply to the Court for directions in relation to any issue arising in the administration of the Distribution Scheme, including as to the costs thereof.
Pursuant to ss 103R(2), 103V(1)(g), 103V(2), 103ZA and 103ZC of the CP Act and further to order 1 of the 2019 Orders and paragraph 6 of the Annexure A to the 2019 orders, the following distributions from the Resolution Sum (within the meaning of the 2019 Orders) be approved for the purposes of the Distribution Scheme:
the plaintiffs' legal costs, being professional fees and disbursements on a solicitor and own client basis, including incurred in connection with the proceeding on their own behalf and on behalf of all Group members in the proceeding payable to:
Augusta as reimbursement for professional fees and disbursements paid by Augusta in the amount of $1,192,314.00;
Shine Lawyers in its capacity as solicitor for the plaintiffs in the amounts of:
$1,071,123.26 for costs up to 14 March 2024 (being the sum of $218,105.92 within the settlement of the defendant's costs liability, and $853,017/34 in reasonable solicitor-client costs borne by Shine outside the settlement of the defendant's costs liability); and
$124,151.76 for costs from 14 March 2024 to 30 April 2025;
the amount of $1,435,134.20 (being 25 per cent of the total judgment sum of $3,791,536.80 plus agreed interest of $1,950,000) to Augusta in full satisfaction of the commission payable to Augusta to fund the proceeding; and
an amount of $20,000 to the plaintiffs, being a reasonable sum to compensate the plaintiffs for the time and expenditure reasonably incurred by them in the interests of prosecuting the proceeding on their own behalf and on behalf of all Group Members, with $10,000 to be paid to the first plaintiff, $5,000 to be paid to the second and third plaintiffs together, and $5,000 to be paid to the fourth plaintiff.
Pursuant to s 103X of the CP Act, the Group members affected and bound by these orders are the Group Members identified in order 1 of the 2021 Orders.