Simpson v Thorn Australia Pty Ltd trading as Radio Rentals

Solicitor for the First Respondent: Quinn Emanuel Urquhart & Sullivan

Counsel for the Second Respondent /Cross-Claimant: Mr S Snow

Solicitor for the Second Respondent/Cross-Claimant: Gillis Delaney Lawyers

Counsel for the Third Respondent/Cross-Respondent: Mr J Giles SC

Solicitor for the Third Respondent/Cross-Respondent: Lander & Rogers Lawyers

BETWEEN: CASEY CHERYL SIMPSON Applicant

AND: THORN AUSTRALIA PTY LTD T/AS RADIO RENTALS First Respondent

JAMES LESLIE MARSHALL Second Respondent

AND BETWEEN: JAMES LESLIE MARSHALL Cross-Claimant

AND: AIG AUSTRALIA LTD Cross-Respondent

JUDGE: LEE J DATE OF ORDER: 20 DECEMBER 2019

1. Pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth) (Act), the settlement of this proceeding be approved on the terms set out in: (a) the settlement deed made on 2 September 2019, being Annexure BJS-38 to the affidavit of Ben Slade affirmed 31 October 2019, as varied by the variation of settlement deed, being Annexure BJS-47 to the affidavit of Ben Slade affirmed on 16 December 2019 (Deed); and (b) the Settlement Distribution Scheme, being Annexure BJS-48 to the affidavit of Ben Slade affirmed on 16 December 2019 (Settlement Distribution Scheme), save for cl 11.3.
2. Pursuant to s 33ZF of the Act, the applicant is authorised nunc pro tunc, on behalf of the Remaining Group Members, to enter into and give effect to the Deed and conduct the transactions and take the steps contemplated by the Deed for and on behalf of the Remaining Group Members.
3. Pursuant to s 33ZB(a) of the Act, the persons affected and bound by these orders are the Parties to the Deed and Remaining Group Members.
4. Pursuant to s 33ZF of the Act, Maurice Blackburn be appointed as the Claims Administrator of the Settlement Distribution Scheme and act in accordance with the Settlement Distribution Scheme, subject to any direction of the Court.
5. Pursuant to s 33ZF of the Act the amount of $10,000 is approved as the amount to be deducted from the Settlement Sum to reimburse the applicant for the purposes of cl 4(a)(iii) of the Deed.
6. Pursuant to s 33ZF of the Act the referee's report of Ms Lydia Fogl dated 9 December 2019 is adopted.
7. Pursuant to ss 22, 23 or 33ZF of the Act or FCR 1.32 and/or the Court's implied jurisdiction, the proceeding (including all cross-claims in the proceeding) is dismissed with no order as to costs and with all previous cost orders vacated with effect from the date on which the final distribution to the Participating Group Members from the Settlement Sum is made, on the basis that the dismissal is a defence and absolute bar to any claim or proceeding by the applicant or any Remaining Group Member with respect to this proceeding.
8. Pursuant to ss 37AF and 37AG(1)(a) of the Act, in order to prevent prejudice to the proper administration of justice, Annexure BJS-49 to the Confidential Affidavit of Ben Slade affirmed on 16 December 2019 is to remain confidential and their publication is prohibited until further order.
9. Maurice Blackburn is granted leave to apply to the Court for approval of any Administration Costs in addition to the amount referred to in the referee's report of Ms Lydia Fogl dated 9 December 2019.
10. Liberty is reserved for Maurice Blackburn to apply to Lee J in the event there is a residual sum, to present proposals which may see the most efficient distribution of the residual sum to those who are most in need of it. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LEE J: 1 In Abbott v Zoetis Australia Pty Ltd (No 2) [2019] FCA 462; (2019) 369 ALR 512 at 513 [1], I explained that: Class actions come in an array of shapes and sizes. They may be open or closed, funded or funded. Group membership may be very limited or exceedingly vast. The individual claims may be modest, or they may be significant. The subject of the claim may be of signal public importance, or no more significant than a joint enterprise seeking to use litigation as a means to make money. The claim may be advanced in the context of a "no costs" jurisdiction, or where "ordinary" costs rules apply. The claims advanced may be dodgy, or they may be dripping in merit. The group may be the poor and dispossessed, or as rich as Croesus, they may be natural persons, or artificial (or a combination of both). 2 Although there is heterogeneity in class actions, it merits noting that the current case is an exemplar of the type of grouped proceeding sought to be promoted by the beneficial reform instituted by Pt IVA of the Federal Court of Australia Act 1976 (Cth) (Act). Persons, including those who might be characterised as vulnerable, commercially unsophisticated, and perhaps even marginalised, have a large number of individually very modest, but collectively significant, claims. The claims are said to arise from unconscionable, even predatory conduct, by an alleged wrongdoer. 3 It is commonplace for cynical comments to be made about the oft-repeated catch-cry that Pt IVA is all about "facilitating access to justice". In part, this scepticism might be the result of the way in which some persons (who use Pt IVA as a mode of advancing joint enterprises) occasionally inappropriately fasten upon this phrase, as providing a simplistic justification for their commercial endeavours. But despite the notion of access to justice being a term loosely used by some, it was, and remains, the critical objective of Pt IVA. Although the legal representatives of the applicants will be "rewarded" by payment of their legal costs and disbursements, it is encouraging to anyone who has an interest in Pt IVA working as it was intended to work, that cases such as the present can be brought by experienced and competent solicitors and barristers, which allow for the resolution of modest claims such as those advanced in this class action. 4 I emphasise that these comments should not be interpreted as indicating that the claims of group members have been "vindicated" in a legal sense (such as would be the case if a judgment had been entered in favour of the applicant). It is not my role on a s 33V application to speculate as to whether the impugned conduct of the respondents should be stigmatised in the manner alleged; but the fact remains, that without the benefit of Pt IVA and the willingness of those acting for the applicant and group members to conduct speculative litigation in the public interest, it is reasonable to conclude that these claims would never have been able to be brought. 5 Turning to the present application, a number of things about Pt IVA practice and procedure may be thought to be dynamic or attended by some doubt, but one thing is clear: the world does not need another judgment where the principles informing whether or not a settlement should be approved are set out in any detail. The principles are pellucid and do not require further explanation. 6 This proceeding was commenced in March 2017 by Ms Simpson seeking relief against the first respondent (Thorn) on her own behalf and in a representative capacity. She is a pensioner, and during a period from 2011 to 2017, she obtained financial products from Thorn for personal, domestic or household purposes. She alleges that Thorn engaged in conduct, which was misleading or deceptive, involved the imposition of contract terms that were unfair, and that Thorn engaged in unconscionable conduct contrary to various statutory norms. It is unnecessary for me to set out in any detail the nature of the claims advanced by Ms Simpson as this has already been done in an earlier interlocutory judgment in this proceeding: Simpson v Thorn Australia Pty Ltd trading as Radio Rentals (No 2) [2019] FCA 838 at [6]. 7 The parties to the proposed settlement are Ms Simpson, her solicitors (Maurice Blackburn), Thorn entities and their insurer. An office holder of Thorn, Mr James Marshall, is not a party to the settlement, and I will come back briefly to a matter relating to his position below. The principal terms of the proposed settlement are as follows: (1) a total amount of $29 million is to be paid into a settlement account; (2) Ms Simpson's legal costs (and the costs of any administration scheme as approved in this judgment) are to be deducted from this amount (which, in the interim, will be augmented by interest); (3) $10,000 is to also be deducted from this amount to reimburse Ms Simpson for the time spent providing instructions and evidence to advance the common issues; and (4) details will be obtained from group members who, in recent times, have registered to participate in the settlement, and following the deduction of the expenses notified above, the balance of the amount will be distributed to those who are participating group members pursuant to the terms of an elaborate settlement regime. 8 By the use of the word "elaborate", I am not being in the least bit critical. It is recognition of reality. The distribution of funds in a settlement such as this raises a large number of challenges, including the effective mode of communication with group members and ensuring that there is accuracy in the amount that is distributed to them. 9 It appears that between 25 and 30 per cent (give or take) of potential group members have registered to participate in the settlement. In those circumstances, the maximum payment will be in the region of $3350, the average payment around $320, and the median payment around $267. These are modest amounts, but no doubt, upon receipt, they will be very much welcomed. Of course, it is hardly surprising that the individual settlement distributions are modest, because the nature of the transactions were such that the amounts the subject of the contractual arrangements between the group members and Thorn were also modest. 10 I have had the benefit of a detailed joint confidential opinion on the proposed settlement prepared by Ms Francois and Mr Mack of counsel. That confidential opinion sets out all the matters that are required to be taken into account upon an approval application. The confidential opinion is just that - confidential. I would not be doing justice to the detailed and helpful analysis contained in this document by seeking to summarise it at a level of generality sufficient to maintain its confidential character. 11 However, I am satisfied after reviewing the joint opinion that the following matters have been considered and dealt with in detail: the nature of the claims and defences; a consideration of the risks of the litigation (including the individual liability risks in the case against Thorn and the case against Mr Marshall and the insurer); the recovery risks associated with the claims; the fairness of the settlement between the group members inter se; the complexity and likely duration of the litigation; the reaction of group members to the settlement (which has been almost uniformly positive); and, more generally, the reasonableness of the settlement in the light of the likely best recovery and all attendant risks. 12 I am comfortably satisfied that the settlement is, in all the circumstances, fair and reasonable and in the interests of group members. There are just a few matters that I should deal with in more detail, the fourth of which has significance which transcends the circumstances of this case. 13 First, as noted above, it is proposed that there be a reimbursement payment to Ms Simpson for the sum of $10,000 out of the settlement fund. The parties have agreed that this sum is a reasonable amount for the time spent by her in providing instructions and evidence to advance the common issues. The legal basis for such payments is relatively well established. The source of the Court's power is, at the very least, contained in s 33V(2) of the Act, but ought not be seen as confined to that section or some other statutory power. There is a long history of courts of equity providing reimbursements of costs and expenses incurred in pursuing the claims of others. What matters for present purposes is that representative applicants perform an important function and it is appropriate that they be reimbursed for the time they have spent in performing that role for the benefit of others: see my remarks in Liverpool City Council v McGraw-Hill Financial, Inc (now known as S&P Global Inc) [2018] FCA 1289 at [128]. In a case such as the present, it is understandable that the role of being a representative would have been a source of some anxiety and stress. There is some mention of this in the materials before me. However, I do not consider the justification for the payment that I will approve to be some sort of compensatory response for the vexation of litigation; rather, it is based on the notion that someone who assists in bringing in a fund for the benefit of others should have some compensation for the exertions of doing so. 14 Secondly, unlike in some other Pt IVA settlements, the present parties have appropriately calibrated the scope of the releases to ensure that the applicant does not purport to release claims other than those specific claims a representative applicant is entitled to deal with pursuant to the statutory agency reflected in Pt IVA. 15 Thirdly, an issue has arisen in relation to a cross-claim, being a cross-claim filed by Mr Marshall against Thorn Group Limited. In that cross-claim, Mr Marshall sought indemnity in relation to the legal expenses incurred by him in defending the claim brought in the class action and sought judgment in the amount of any outstanding legal costs incurred by him. A dispute has arisen, apparently, about the entitlement of a barrister to charge what was described as a "cancellation fee" in respect of a brief to appear at the hearing vacated by Gleeson J when this matter settled (subject to Court approval). The settlement provides for the dismissal of all cross-claims. As counsel for the cross-respondent to the cross-claim has confirmed, the dismissal of this cross-claim in the context of resolving this proceeding in its entirety will not operate as a fetter on this claim for a "cancellation fee" being maintained in a separate proceeding (if that course was thought advisable and appropriate by the barrister). I merely note my agreement, based on my experience of how the New South Wales Bar operates, with what was said by Wilcox J in Commissioner of the Australian Federal Police v Razzi (No 2) (1991) 30 FCR 64 at 67: Most established barristers find that their problem is over-employment, not under-employment. For most, some unexpected time out of court is a welcome opportunity to catch up with chamber work. 16 Fourthly, cl 11.3 of the settlement distribution scheme provides that if there is an outstanding balance remaining in the settlement fund as at the date of final distribution to group members who are participating, the administrator (which will be Maurice Blackburn): …may exercise its discretion based on a consideration of what is materially proportionate to distribute the additional amount to some or all Participating Group Members or make a donation to the Financial Rights Legal Centre … or such other community legal centre as approved by the Court. 17 Approving a settlement containing such a provision would not be unprecedented as, in recent years, the Court has seen a number of settlement agreements purporting to empower a scheme administrator to pay the residuum of a settlement distribution pool to charities and not-for-profit organisations, although, as far as I am aware, the source of power to allow such a scheme has not been discussed in any detail. Nor has there been any detailed consideration as to how and when such a power, if it exists, should be exercised. As Professor Vince Morabito has recently explained in the context of discussing law reform proposals in New Zealand (in his article, Lessons from Australia on Class Action Reform in New Zealand (2018) 24 NZBLQ 178 at 190-191): Australia's class action regimes do not expressly empower courts to make cy-près orders. Instead, we have provisions like Part IVA's s 33M which empowers the court to order the termination of a Part IVA proceeding where the cost to the defendant of identifying the class members and distributing to them the damages won by the class representative would be excessive, having regard to the likely total of those amounts. This scenario is attributable to legislative acceptance of the following philosophy, embraced by the ALRC: The grouping procedure is not intended to penalise respondents or to deter behaviour to any greater extent than provided for under the existing law. Any money ordered to be paid by the respondent should be matched, so far as possible, to an individual who has a right to receive it. In 2008, the VLRC recommended an amendment to the Victorian class action legislation that would have empowered the Supreme Court of Victoria to order cy-près remedies where: (a) there has been a proven contravention of the law; (b) a financial or other pecuniary advantage has accrued to the person or entity contravening the law as a result of such contravention; (c) the loss suffered by others, or the pecuniary gain by the person contravening the law, is capable of reasonably accurate assessment; and (d) it is not possible, reasonably practicable or cost effective to identify some or all of those who have suffered the loss. This recommendation was not implemented by the Victorian Government. When the New South Wales Attorney-General announced the introduction of a legislative class action regime for that State, it was revealed that the VLRC's cy-près regime would be included. But when the class action Bill was subsequently unveiled in Parliament, the cy-près provisions were conspicuously absent, following vigorous opposition by the business lobby. Notwithstanding the absence of express cy-près powers, in recent years an increasing number of judicially approved settlement agreements have empowered the settlement scheme administrator to pay specified portions of the settlement residues to several charities and not-for-profit organisations. In recognition of this development, the VLRC has recommended that the Victorian legislation "be amended to specify that the Court has the discretion to make any orders in relation to the distribution of money remaining after settlement distribution." (footnotes omitted) 18 Law reformers have an abiding interest in specific statutory reform, sometimes when it is unnecessary. A real question arises as to the necessity for such specific provisions because of the width of the powers the Court already has (under provisions such as ss 33V(2) and 33ZF of the Act) and also, importantly, because of the powers of the Court, as a court of equity (s 5(2) of the Act), to fashion appropriate remedies to respond to exigencies such as the inability or impracticability of distributing a fund. 19 As was explained in Story, J, Equity Jurisprudence (14th ed, 1918) at s1518ff, although it may be thought the cy-près doctrine originated or was applied as early as the third century in Rome before Constantine, the modern development of the doctrine commenced in the Court of Chancery. The term "cy-près" is a translation of the Norman French term "cy-près comme possible", meaning "as near as possible". In general terms, the doctrine allows a court to continue to apply charitable trusts where the intent of the settlor can no longer be effectuated, such that an alternative plan can be designed which will serve to carry out the donor's intent as nearly as possible. The doctrine was initially justified (at least tangentially) by reference to the benefit to the donor. Given the strong ecclesiastical influence exerted upon medieval equity law by clerical judges, it was thought that the donor was likely to have donated the money for the purpose of securing "an advantageous position in the kingdom of heaven": see Wasserman, R, "Cy Pres in Class Action Settlements" 88 S Cal Law Rev 97 at 115; Geronime, "The Cy Pres Doctrine in Wisconsin" (1965) 49 Marq L Rev 387 at 388. If the donor's plan was no longer able to be carried out, the Court of Chancery could substitute another plan which would serve to effectuate the donor's intention (hence allowing the donor to enjoy the spiritual advantages of his charity). In modern times, the doctrine is justified by finding an alternative option, which will substantially vindicate the donor's original intention and prevent the failure of a charitable trust. 20 When the issue of construing charitable gifts first arose in the United States, the equitable doctrine of cy-près was adopted: Comment, "A Revaluation of Cy Pres" (1939) 49 Yale L J 303 at 303. In the 1970s and 1980s, American courts began to adapt the cy-près doctrine to the class action context. Among other things, the doctrine was used to justify distributing residual unclaimed or non-distributable funds to non-party charitable institutions. It is currently applied when it is impracticable to pay out some or all of the damages fund to injured class members, and a charity is located whose purpose relates to the subject matter of the action: Redish, M H, Julian, P and Zyontz, S, "Cy Pres Relief and the Pathologies of the Modern Class Action: A Normative and Empirical Analysis" (2010) 62 Fla L Rev 617 at 618-620. 21 Unlike the historical justification and legal bases for the cy-près doctrine in charitable trusts, the practical application of some aspects of the doctrine to the class-action landscape is not without controversy and criticism in the United States. Recently, a class-action was brought against Google for alleged violations of the Stored Communications Act 18 USC s 2701 et seq and various privacy torts. A settlement was reached, however, none of the settlement proceeds were proposed to go to the group members. It was proposed that a substantial sum would go to reimbursing legal fees and costs, and the remainder would be paid as a cy-près award to institutions that research or advocate for internet privacy. Indeed, the class action was said to be an example of a case which provided no direct relief to class members but was only directed to benefitting charitable entities and enriching class counsel. Mr Ted Frank, a class member, objected to the settlement. The District Court, however, approved the settlement (In re Google Referrer Header Privacy Litig. 87 F. Supp. 3d 1122, 1128, 1132 (N.D. Cal. 2015)) on the basis that although the settlement was sizeable, the amounts owed to each class member were so small that the fund itself was "non-distributable". Mr Frank subsequently appealed the District Court's approval to the Ninth Circuit. The Supreme Court of the United States eventually granted certiorari and heard the case in 2018, but rather than addressing the issue of power, delivered a per curiam decision Frank v Gaos No 17-961; 139 S. Ct. 1041; 203 L. Ed. 2d 404 (2019), vacating the judgment of the Court below and sending the matter back to the Ninth Circuit for consideration of questions as to standing. The controversy in the United States as to whether, or in what circumstances, a class action which proposes a cy-près "award" that provides no direct relief to class members is consistent with requirements of class certification and comports with the requirement that a settlement binding class members must be "fair, reasonable, and adequate", is not a matter of present concern in this country. What is of relevance, is the acceptance of the principle that the doctrine has some application in distributing settlement funds which cannot practically be distributed. 22 In Australia, for a court to order a cy-près scheme, there must be either: (a) a case of initial impracticality or impossibility and either an out-and-out intention to benefit charity or a general charitable intention and a possible mode of effectuating that intention; or (b) a case of supervening impracticability or impossibility; or (c) a case where a trust has exhausted its original purpose and a surplus remains: Heydon, J D, Jacobs' Law of Trusts in Australia (2016, 8th ed) at 182 [10-70]. Although statute has expanded the cases in which the original purpose of a trust can be varied, equity fastens upon circumstances where there is a proven impossibility or impracticality. In considering schemes for the application of funds cy-près the court has regard to two main principles: (a) where an object is clearly indicated by the donor which is capable of being carried out, the fact that it can be shown that a different method of applying the funds would be beneficial to the community is no ground for disregarding the express intention of the donor; and (b) any new purpose must be in the nature of the particular purpose intended by the settlor as far as that can be ascertained. 23 As can be seen from its application in the cases, equity provides some flexibility within these bounds when it comes to designing and applying cy-près schemes. Extending this principle to ordering schemes in the current class action context, particularly in the light of the well-established position in the United States, seems to me to fulfil the requirement that the principled application of equitable remedies "must be shown to have an ancestry founded in history and in the practice and precedents of the courts administering equity jurisdiction": see In re Diplock; Diplock v Wintle [1948] Ch 465 at 481-482; Gee v Pritchard [1818] 36 ER 670; (1818) 2 Swans 402 at 674 [414]. That is, provided it is only applicable in circumstances consistent with the doctrine's ordinary operation, being circumstances of impossibility or impracticality of distribution to those entitled to the relevant fund. 24 It follows I consider that the Court presently possesses sufficient power to fashion a remedy to allow a distribution of a settlement sum pursuant to a form of cy-près scheme if it is impracticable or impossible to distribute all or some of the settlement sum to group members individually (being circumstances directly analogous to there being a trust which has exhausted its original purpose and a surplus remains). 25 However, even if I am wrong about the position in equity, s 33V(2) of the Act is wide enough to provide this Court with such power. Section 33V is in the following terms: 33V Settlement and discontinuance - representative proceeding (1) A representative proceeding may not be settled or discontinued without the approval of the Court. (2) If the Court gives such an approval, it may make such orders as are just with respect to the distribution of any money paid under a settlement or paid into the Court. 26 The adoption of the expedient of a cy-près scheme with respect to a residual sum would fall within the power to make orders with respect to the distribution of money paid under a settlement, provided that such a scheme was "just". Taking into account the equitable analogue which, at the very least, provides some guidance as to what might be considered "just" in analogous circumstances, where a cy-près scheme was applied in a way which went to assisting a charity or cause closely related to those persons to whom the money is owed (but not able to be distributed), the application of such a scheme could, depending upon all the other circumstances, be "just". 27 I would just make a further, related point: given the protective and supervisory role of the Court, it seems to me unsound to approve a settlement scheme which, without further scrutiny, allows a scheme administrator to exercise a "discretion" to "make a donation" to an entity as part of a broader scheme approved at the hearing of a s 33V application. If such an order is to be made, it should be made pursuant to a specific order in relation to a specific sum, upon the court being satisfied that distribution to those otherwise legally entitled to the specified sum, is impracticable or impossible. It is conceivable that this state of satisfaction might be reached at the time of approval, but it seems to me that in many cases, consideration of this issue may need to be deferred to await assessment of how earlier distributions have proceeded. 28 Turning to the current proposal, I have no reason to doubt that the Financial Rights Legal Centre is a worthy target of largesse; however, I have a protective role in relation to group members, and this responsibility is acute in relation to vulnerable group members who have difficulties of a financial nature. It is very easy to be generous with other people's money. I am far from satisfied, on the present evidence, that it is impracticable or impossible to distribute all of the settlement sum to group members or to some of them, even if it requires serial distributions. 29 The claims administrator in this case is highly experienced. Instead of approving the proposed regime in cl 11.3, what I will do is reserve liberty for the claims administrator to apply to the Court, in the event there is a residual sum, to present proposals which facilitate the most efficient distribution of this residual sum to those of the group members who are most in need of it. 30 In all the circumstances, I am satisfied that I should make the orders proposed in the short minutes of order provided to me by the applicant (save for approving cl 11.3 of the settlement distribution scheme). I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.