Petrusevski v Bulldogs Rugby League Club Limited

(b) The second applicant is to receive the full amount of his bets totalling $3600.

(c) Mr Colin Tidy has agreed to receive 40% of the total bets outlaid, resulting in the payment of the sum of $61,900.

(d) All known group members whose bets ranged between $1 and $500 are to receive the full amount of their bets ('Category 1 Payments').

(e) All known group members whose bets are in excess of $500 are to receive the first $500 of the total bets outlaid plus 30% of the outstanding amount ('Category 2 Payments').

(f) The remaining sum of $49,974.20 is to go towards the solicitor/client costs of the applicants and the known group members. No additional amount by way of solicitor/client costs is or has been paid to Clinch Neville Long with respect to these proceedings.

6 On 25 November 2004 a notice dealing with the proposed settlement was published in The Australian newspaper in a form approved by a judge of the Court. On the same day a letter was forwarded to the applicants and each of the identified group members for whom the solicitors for the applicants acted, which enclosed a copy of the published notice. The notice included an account of the nature of the proceedings, the key provisions of the proposed settlement, a statement of the criteria for eligibility as a group member, instructions as to how to participate in the settlement and advice that if the party did not wish to accept the proposed settlement it might appear before the Court. 7 Eligibility for Group membership was set out in the following way: 'You are an eligible Group Member if you, on or before 19 August 2002: 1 lawfully placed a bet on the Bulldogs for the 2002 competition other than for the Wooden Spoon.

2 lawfully placed a bet on any team except the Bulldogs to win the Wooden Spoon in the 2002 competition.

3 did not know of the breaches of the salary cap by the Bulldogs which endangered the competition points; and

4 expected the Bulldogs to comply with the requirements of the salary cap; and

8 No additional person claiming to be a group member has communicated with the solicitors for either party since publication of that notice and no such person has appeared at the hearing. 9 The principles governing an application of this kind and relevant authorities have recently been discussed by Sackville J in Courtney v Medtel Pty Ltd (No 5) [2004] FCA 1406 at [37]-[42]; see also Reiffel v ACN 075 839 226 Pty Limited (No 2) [2004] FCA 1128 (Reiffel). Consideration of these principles causes me to focus upon three issues.

1 Reasonableness overall 10 The overall settlement is the result of a mediation conducted by an experienced mediator with experienced counsel and solicitors on both sides present. The solicitor for the applicants has set out some of the considerations which led to the compromise. I am satisfied that the compromise was reasonable taking account of those factors and the risks of litigation generally.

2 Allocation of part of the proceeds to solicitor/client costs 11 The allocation of part of the amount to be paid to satisfaction of the solicitor/client costs is not expressly disclosed in the advertisement or in the correspondence with group members. The issue of costs in proceedings such as this is often a matter of some sensitivity (cf Reiffel). 12 The evidence now establishes that the costs retainers entered into in the matter envisage that, under certain circumstances, solicitor-client costs could be deducted from amounts recovered as a result of the litigation with a cap, however, of one third of the amount recovered. The evidence satisfies me that the amount properly charged for solicitor-client costs in this matter would be significantly in excess of the approximately $50,000 which is to be retained from the proceeds and it is clear that the amount retained does not exceed the cap imposed by the retainer arrangements. Furthermore, the evidence discloses that Category 1 group members are not adversely affected by the arrangement. So far as Category 2 group members are concerned, all but two have been contacted by the solicitor for the applicants and no objection has been raised by any party. Under the circumstances, I am satisfied that allocation of part of the proceeds to solicitor-client costs as proposed is reasonable.

3 Apportionment between Group Members 13 The first issue is the distinction between Category 1 and Category 2 group members, that is, between bets below and above $500. This is admittedly somewhat arbitrary and pragmatic. It has not been the subject of complaint by any group member. It is reasonable in the circumstances. The next issue relates to the full recovery by each of the named applicants. This is justified on the basis that the applicants incurred potential responsibility for costs and were involved in time and effort in preparation of the case above that of ordinary class members. The same issue arises in relation to an advantage accruing to Mr Tidy in comparison with other Category 2 class members on account of his participation in the proceedings. In my opinion, the settlement is reasonable in these respects.

Conclusion 14 I am thus satisfied that approval should be granted and ancillary orders disposing of the proceedings made. For reasons explained in argument I do not think it appropriate to make Order 7 as sought in the Short Minutes of Order. The Act governs the effect of what has occurred. Order 6 is properly a matter for noting by the Court. Orders are made in accordance with the draft Short Minutes of Order omitting Orders 6 and 7. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.