Queensland Teachers' Union Health Fund Limited v Teachers Federation Health Limited, in the matter of Queensland Teachers' Union Health Fund Limited

(2) Assets has the meaning given to TUH Assets in the Scheme;

(3) Liabilities has the meaning given to TUH Liabilities in the Scheme; and

(4) capitalised nouns and acronyms not defined in these orders have the meanings and interpretations given to them by the Scheme.

1. Pursuant to s 411(4)(b) of the Corporations Act 2001 (Cth), the scheme of arrangement (Scheme) proposed between the plaintiff, Queensland Teachers' Union Health Fund Limited ACN 085 150 376 (TUH) and TUH Company Members, the terms of which are set out in Annexure B of the Scheme Booklet, is approved.
2. Pursuant to s 411(12) of the Act, the plaintiff is exempted from compliance with the requirements of s 411(11) of the Act.
3. Orders 4 and 5 below are made pursuant to s 413 of the Act for the purpose of facilitating the Scheme and are subject to, and in accordance with, the terms of the Scheme.
4. Pursuant to s 413(1) of the Act, with effect from the Effective Date (as outlined in the Scheme), the Scheme be implemented by the following steps taken in the following order:

(a) first, all of the Assets of the plaintiff, including any subject to security interests, are to be transferred to, and vested in, the defendant without the need for any further act or deed;

(b) second, all of the Liabilities of the plaintiff are to be transferred to, and become Liabilities of, the defendant without the need for any further act or deed;

(c) third, all legal proceedings (if any) pending or against the plaintiff are deemed to be continued by or against the defendant without the need for any further act or deed, other than an amendment of the record of the relevant court or tribunal which will be the responsibility of the defendant; and

(d) fourth, the plaintiff is to be deregistered by ASIC without winding up following the plaintiff serving a notice of deregistration on ASIC and at the expiry of 60 days after service of such notice.

1. Pursuant to s 413(1)(g) of the Act, on and from the Effective Date:

(a) the defendant or any director, officer, company secretary or other duly authorised signatory of the defendant from time to time may, sign all documents and do all things required to be done by the plaintiff to complete or perfect the transfer of the Assets and Liabilities of the plaintiff as contemplated by the Scheme, whether by lodgement, registration, notification or otherwise;

(b) in contracts, licenses and policies which form part of the Assets and Liabilities transferred to, and vested in, the defendant pursuant to sub-paragraphs 4(a) and 4(b) above, and to which the plaintiff is named as a party, any reference to the plaintiff is to be read as a reference to the defendant; and

(c) the defendant may use, disclose and otherwise handle all information transferred and vested in it by the plaintiff provided always that the defendant shall receive the information upon the same terms as the plaintiff held the information and subject to the Liabilities of the plaintiff in respect of that information.

1. For the purpose of transferring the Assets and Liabilities from the plaintiff to the defendant pursuant to the orders at sub-paragraphs 4(a) and (b) above, pursuant to s 413(1)(g) of the Act on and from the Effective Date, subject to and in accordance with the Fair Work Act 2009 (Cth):

(a) the defendant is to be covered by all of the enterprise agreements that covered the plaintiff immediately before the Effective Date (Enterprise Agreements) as the employer;

(b) the plaintiff is not to be covered by those Enterprise Agreements as the employer; and

(c) for the avoidance of doubt, each Enterprise Agreement will cover all employees in relation to their employment with the defendant to the same extent as they were, or would have been, covered in relation to their employment with the plaintiff before the Effective Date.

1. The parties, or any director or officer of any party, and any employee or union representing the employees of the plaintiff have liberty to apply for any further orders pursuant to s 413 of the Act as may be considered necessary or desirable.
2. These orders be entered forthwith.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. At the second Court hearing in this proceeding, the plaintiff, TUH, seeks orders pursuant to ss 411(1) and 413 of the Corporations Act 2001 (Cth) approving a scheme of arrangement between TUH and its members, and to facilitate the implementation of the scheme.
2. The purpose of the scheme is to give effect to an amalgamation of TUH and the defendant (Teachers Health) that is the subject of a merger implementation deed between TUH and Teachers Health. Each of TUH and Teachers Health is a public company limited by guarantee which underwrites private health insurance policies and a private health insurer under the Private Health Insurance (Prudential Supervision) Act 2015 (Cth) (PHIPS Act). It is proposed that the merger will take place in accordance with Division 4 of Part 3 of the PHIPS Act. The Australian Prudential Regulatory Authority has provided its written approval of the proposed merger (see s 33(2) of the PHIPS Act).

1. The evidence in support of the application, in addition to that relied upon at the first Court hearing (see Queensland Teachers' Union Health Fund Limited v Teachers Federation Health Limited, in the matter of Queensland Teachers' Union Health Fund Limited [2025] FCA 481 (TUH (No 1)) at [8] to [14]) is:

(1) an affidavit of Ms Anna Jane Baker, the Chief Risk Officer of TUH, affirmed 20 June 2025;

(2) an affidavit of Mr John Charles Battams, a director of TUH who acted as the Chair for the scheme meeting, affirmed 20 June 2025;

(3) a letter from the Australian Securities and Investments Commission (ASIC) dated 20 June 2025 in which ASIC advised that under s 411(17)(b) of the Act it has no objection to the scheme; and

(4) certificates provided by each of TUH and Teachers Health and a joint certificate by both of them for the purposes of cl 3.21 of the deed, confirming satisfaction of the matters set out in cl 3.1 of the deed (or waiver of compliance with such matters).

1. From that evidence, the salient background is as follows.
2. On 12 May 2025, following the first Court hearing in this proceeding, I made orders (12 May 2025 orders) pursuant to ss 411(1), 413 and 1319 of the Act approving the despatch of a scheme booklet and for the convening of a meeting (scheme meeting) of TUH's members for the purposes of considering, and if thought fit, agreeing to the scheme described in the proposed scheme booklet. My reasons for doing so are set out in TUH (No 1). Familiarity with TUH (No 1) is assumed in these reasons for judgment and these reasons include terms defined in TUH (No 1) or in the 12 May 2025 orders.
3. Also on 12 May 2025:

(1) the scheme booklet was registered with ASIC as required by s 412(6) of the Act; and

(2) the 12 May 2025 orders were sealed and lodged with ASIC as required by r 3.5 of the Federal Court (Corporations) Rules 2000 (Cth).

1. On 16 June 2025, TUH announced details of the second Court hearing by publishing an advertisement in the public notices column of The Australian newspaper.
2. On 18 June 2025, the scheme meeting was held. At that meeting the scheme resolution was passed, with 252 of 263 (or 95.82 per cent) of members present and voting (in person or by proxy) in favour of that resolution.
3. On 20 June 2025, as noted at [3(3)] above, ASIC advised that it has no objection to the scheme.

1. The Court has a discretion, under s 411 of the Act, to approve the scheme. That discretion has been enlivened. The principles which inform the exercise of that discretion are well-established and were recently summarised by Justice Jackman in One Funds Management Limited, in the matter of One Funds Management Limited (No 2) [2025] FCA 602 at [5] to [7] (albeit in relation to a creditors scheme of arrangement) as follows:

1. The general principles which guide the Court's discretion to approve a scheme at the second Court hearing are well established. The Court has a discretion to approve a scheme, and is not bound to approve it merely because it has made orders for the convening of a meeting or because the statutory majorities have been achieved: Re Seven Network Ltd [2010] FCA 400; (2010) 77 ACSR 701 at [31]-[45] (Jacobson J) (Re Seven Network Ltd). 2. The Court will usually approach the task on the basis that creditors are better judges of what is in their own commercial interest than the Court: Re Seven Network Ltd at [32]; Re BIS Finance Pty Ltd [2018] NSWSC 3 at [10] (Black J). 3. The matters the Court must take into account in approving a scheme at the second Court hearing include:

(a) whether the orders of the Court convening the scheme meeting were complied with; > > (b) whether the resolution to approve the scheme was passed by the requisite majority and whether other statutory requirements have been satisfied; > > (c) whether all conditions to which the scheme is subject (other than Court approval and lodgement of the Court's orders with ASIC) have been met or waived; > > (d) whether the scheme is fair and reasonable so that an intelligent and honest member of the relevant class, properly informed and acting alone, might approve it; > > (e) whether the proponent has brought to the attention of the Court all matters that could be considered relevant to the exercise of the Court's discretion; and > > (f) whether there was full and fair disclosure to creditors of all information material to the decision whether to vote for or against the scheme.

C.1.1 Orders 1 to 9 - convening and conduct of the scheme meeting

1. Orders 1 to 9 of the 12 May 2025 orders provided for the convening and conduct of the scheme meeting.
2. I am satisfied that there has been compliance with those orders.
3. The scheme meeting was held at the time and in the manner contemplated, as recounted by Mr Battams in his affidavit evidence. Mr Battams and Ms Baker have provided evidence of the events of the meeting, including the collation and counting of proxy forms, none of which evidence raises any concerns.
4. Prior to the scheme meeting - and as contemplated by order 8 of the 12 May 2025 orders - the requisite material, including the Scheme Booklet and a proxy form, together with an email (to Electronic Recipients) and a hard copy letter (to Hard Copy Recipients) were despatched to TUH's members.

1. TUH has brought to the attention of the Court the following deviations or potential deviations from strict compliance with order 8:

(1) within the Scheme Booklet, several documents which were unsigned in the proposed scheme booklet were signed; cross references were corrected or added; the date of the Scheme Booklet and the date of the notice of scheme meeting were changed from 13 May 2025 to 12 May 2025; and a new back cover (with TUH's legal name, Australian Business Number, address and website address) was included;

(2) one Electronic Recipient requested that a hard copy of the requisite material be provided to all Electronic Recipients, and TUH acceded to this request to the extent of providing that Electronic Recipient with a hard copy;

(3) TUH received a request from one of its members, who is also a TUH policyholder, to send the requisite material to the address linked to his policyholder account. TUH then identified that there were 50 members (including the member who made the request) who had different registered addresses qua policyholders than qua members. TUH sent the requisite material to the alternative addresses for those members; and

(4) at the scheme meeting, one member who registered to vote indicated that she had not received a copy of the Scheme Booklet. That member was an Electronic Recipient and Xcend's records disclose that the email address used to despatch the requisite material to her was the same address recorded in TUH's register of members. TUH has provided evidence of the email sent to that member. Notably, that member abstained from voting and it is clear that if she had decided to vote against the scheme, her vote would not have affected the outcome.

1. None of the above matters is material and I am satisfied that there has been effective compliance with order 8.
2. Ms Baker also provided evidence of communications with members via telephone, none of which raises any concerns.

C.1.2 Order 10 - prompt lodgement of an office copy of the 12 May 2025 orders with ASIC

1. As noted at [6] above, the 12 May 2025 orders were sealed and lodged with ASIC on 12 May 2025.

C.1.3 Order 12 - notice of the second Court hearing

1. As noted at [7] above, on 16 June 2025, TUH gave notice of the second Court hearing by publishing an advertisement in the public notices column of The Australian newspaper. TUH did so in a manner which complied with order 12 of the 12 May 2025 orders. No notice (formal or informal) of any person proposing to appear at the second Court hearing was received. Nor did any such person appear at the hearing.

C.2 The scheme meeting and the requisite majorities

1. As noted at [8] and [13] above, the scheme meeting occurred in accordance with the orders made that were relevant to that meeting, and 252 of 263 (or 95.82 per cent) of members present and voting were in favour of the scheme resolution. This exceeded the requisite majorities specified in s 411(4)(a)(ii) of the Act, namely a majority by number of the members present and voting and 75 per cent of the votes cast on the scheme resolution.

1. Clause 3.21 of the deed requires both TUH and Teachers Health to provide certificates to the Court confirming the satisfaction or waiver of the matters set out in clause 3.1 of the deed. As noted at [3(4)] above, such certificates were tendered.

1. I am satisfied that the scheme is fair and reasonable. In particular: the scheme resolution was passed with a decisive majority; the independent expert report of Kroll Australia Pty Ltd indicates that, in the absence of any other information or a superior proposal, the scheme is fair and reasonable and thus in the best interests of the TUH's members; and no person appeared at the second Court hearing to oppose the application for approval of the scheme. See also TUH (No 1) at [18].

C.5 Other matters to be brought to the Court's attention

1. At the first Court hearing, senior counsel for TUH drew the Court's attention to the following matters:

(1) TUH's intention to seek orders pursuant to s 413 of the Act;

(2) the impact of the scheme upon creditors;

(3) the impact of the scheme upon employees of TUH; and

(4) the impact of the scheme upon material contracts.

1. These matters were considered on a preliminary basis in TUH (No 1) at [22] to [32]. None of them presented a basis for refusing to make an order to convene the scheme meeting. The orders sought under s 413 of the Act are addressed at E. below. I turn now to address the impact of the scheme upon creditors, employees and material contracts.

C.5.1 The impact of the scheme upon creditors

1. The position of creditors is a consideration relevant to the discretion whether to approve the scheme at the second Court hearing: Re Stork ICM Australia Pty Ltd; Stork ICM Australia Pty Ltd v Stork Food Systems Australasia Pty Ltd [2006] FCA 1849 at [69] (Lindgren J).
2. As noted in TUH (No 1) at [29] to [31]: the proposed scheme booklet disclosed that TUH does not believe that the scheme will materially prejudice the interests of the creditors of TUH or that any material new liability (other than transaction costs) will be incurred by TUH as a consequence of the implementation of the scheme; the merged business of TUH and Teachers Health is likely to have a strong net asset position; and the merged business would have had total net assets of approximately $787.9 million if the merger had occurred as at 31 December 2024. Further, there are no entities with security interests over assets of TUH which are registered under the Personal Property Securities Act 2009 (Cth). The interests of creditors are therefore unlikely to be unfairly affected by the approval or implementation of the scheme. No creditor appeared at the second Court hearing to raise any issues concerning the scheme.

C.5.2 The impact of the scheme upon employees of TUH

1. The likely effect of the scheme on TUH's employees is described by clause 4.1(c) of the scheme. As noted in TUH (No 1) at [32], it is proposed that on the Effective Date: (1) all employees of TUH will become employees of Teachers Health on the same terms and conditions (including any accrued entitlement to employee benefits and length of service) on which they were employed by TUH immediately before the "Effective Date"; and (2) voluntary redundancy offers may be made available to relevant TUH executive employees where there is more than one executive employee of TUH and Teachers Health who could fill that role. Thus, it is not apparent that the interests of employees would be adversely affected by approval of the scheme.
2. TUH gave notice of the scheme to its employees. No employees have expressed opposition to the scheme. No employee appeared at the second Court hearing.

C.5.3 The impact of the scheme upon material contracts

1. In TUH (No1) at [26] to [28], I noted that TUH had: reviewed all relevant agreements with counterparties and conferred extensively with both of the material counterparties since the signing of the deed; and neither material counterparty had disclosed an intention to object to the proposed scheme, despite being on notice of the proposed scheme. No material counterparty has since disclosed an intention to object to the proposed scheme and neither appeared at the second Court hearing.

1. TUH has indicated to the Court that it is otherwise not aware of any matters which require disclosure to the Court.

C.6 Full and fair disclosure to members of all information material to the decision whether to vote for or against the scheme

1. As indicated in TUH (No 1) at [18] and [19], I was satisfied that adequate verification procedures had been undertaken and that the proposed scheme appeared to be fit for consideration by TUH's members. TUH indicated at the second Court hearing that it is unaware of any criticism by ASIC or its members concerning the disclosure made in the scheme booklet. There is no reason to believe that there has not been full and fair disclosure of all material information.

1. TUH seeks an exemption pursuant to s 411(12) of the Act from compliance with s 411(11) of the Act, such that a copy of the Court order approving the scheme need not be annexed to any copy of TUH's constitution that may be issued in the future. I am satisfied that such an order is appropriate in the context of the present scheme. The scheme does not effect any change to the constitution: see Re Anaconda Nickel Holdings Pty Ltd [2003] WASC 19; (2003) 44 ACSR 229 at 240 [65] (McLure J); In the matter of GBST Holdings Limited [2019] NSWSC 1503 at [15] (Black J). Further, there is little utility having the Court order annexed to TUH's constitution in circumstances where TUH is to be deregistered.

E. ORDERS UNDER SECTION 413 OF THE ACT CONCERNING THE IMPLEMENTATION OF THE SCHEME

1. I turn now to the orders sought under s 413 of the Act. Section 413(1) provides that:

Where an application is made to the Court under this Part for the approval of a compromise or arrangement and it is shown to the Court that the compromise or arrangement has been proposed for the purposes of, or in connection with, a scheme for the reconstruction of a Part 5.1 body or Part 5.1 bodies or the amalgamation of 2 or more Part 5.1 bodies and that, under the scheme, the whole or any part of the undertaking or of the property of a body concerned in the scheme (in this section called the transferor body) is to be transferred to a company (in this section called the transferee company) ...,

the Court has a discretion to make various orders for the facilitation of such reconstruction or amalgamation. In addition to particular orders provided for by s 413(1)(a) to (f), s 413(1)(g) enables the Court to make orders providing for "such incidental, consequential and supplemental matters as are necessary to ensure that the reconstruction or amalgamation is fully and effectively carried out".

1. That discretion has been enlivened in the present case.
2. TUH seeks various orders which are to take effect from the Effective Date (which is proposed to be 1 July 2025).
3. The first two orders sought are to the effect that:

(1) all of the Assets of TUH including any subject to security interests, are to be transferred to, and vested in, Teachers Health without the need for any further act or deed; and

(2) all of the Liabilities of TUH are to be transferred to, and become Liabilities of, Teachers Health without the need for any further act or deed.

1. Such orders should be made. Clause 4.1(a) and (b) of the scheme contemplate the transfer of TUH's assets and liabilities, and the transfer of all assets and liabilities is a fundamental step that gives effect to the amalgamation contemplated by the deed.
2. The third order sought is to the effect that all legal proceedings (if any) pending or against TUH are deemed to be continued by or against Teachers Health without the need for any further act or deed other than an amendment of the record of the relevant Court or Tribunal, which will be the responsibility of Teachers Health. Such an order should be made. Clause 4.1(d) of the scheme contemplates the transfer of all legal proceedings by or against TUH to Teachers Health; and the making of the order sought will give effect to the deed and to the scheme. I note that section 8.7 of the Scheme Booklet disclosed that TUH is not presently a party to any legal proceedings; and that this remains the position.
3. The fourth order sought is to the effect that TUH is to be deregistered by ASIC without winding up following TUH serving a notice of deregistration on ASIC and at the expiry of 60 days after service of such notice. Such an order should be made. This action is contemplated by cl 4.1(p) of the scheme and the making of the order sought will facilitate effect being given to the scheme.
4. The fifth order sought is to the effect that Teachers Health or any director, officer, company secretary or other duly authorised signatory of Teachers Health from time to time may, sign all documents and do all things required to be done by TUH to complete or perfect the transfer of the Assets and Liabilities of TUH as contemplated by the scheme, whether by lodgement, registration, notification or otherwise. Such an order should be made. It is contemplated by cl 4.1(n) of the scheme, and it is desirable to make such an order to ensure that there is a mechanism for completing any transfer: see e.g., Legrand Pty Ltd v H.P.M. Industries Pty Ltd; in the matter of Legrand Australia Pty Ltd (No 2) [2009] FCA 1239, order 8 (Lindgren J).
5. The sixth order sought is to the effect that in contracts, licenses and policies which form part of the Assets and Liabilities transferred to, and vested in, Teachers Health and to which TUH is named as a party, any reference to TUH is to be read as a reference to Teachers Health. Such an order is ancillary to the earlier orders and should be made.
6. The seventh order sought is to the effect that Teachers Health may use, disclose and otherwise handle all information transferred and vested in it by TUH provided always that Teachers Health shall receive the information upon the same terms as TUH held the information and subject to the Liabilities of TUH in respect of that information. Such an order is also ancillary to the earlier orders and should be made.
7. TUH also seeks an order providing for the coverage and transfer of existing enterprise agreements as a result of the implementation of the scheme. Orders under s 413(1) of the Act can be used to transfer the rights and obligations of an employee under an enterprise agreement with an employee's present employer to their new employer: Bombardier Transportation Australia Pty Ltd v Alstom Transport Australia Pty Limited (No 2) [2022] FCA 880 at [64] to [81] (Jackson J) and In the matter of Intersnack Mid Co Pty Ltd (No 2) [2024] NSWSC 9 at [11] (Black J). Such an order should also be made.

1. I will also accede to TUH's request that there be liberty to apply for any further orders pursuant to s 413 of the Act, with such liberty to be exercisable by TUH, Teachers Health, any employee of TUH or any union representing the employees of TUH. This may facilitate the making of any orders concerning subsequent, additional or presently unforeseen matters required to be addressed to give effect to the scheme: see Chevron (TAPL) Pty Ltd v Chevron Australia Pty Ltd, in the matter of Chevron (TAPL) Pty Ltd (No 2) [2022] FCA 381 at [53] and the examples there cited (Banks-Smith J).

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Goodman.