B PRINCIPLES AND OPEN JUSTICE
6 As noted above, the fundamental question on an application under s 33V of the Act is whether the settlement is a fair and reasonable compromise of the claims made on behalf of group members. There are a large number of cases which have set out well-established parameters for evaluating the fairness and reasonableness for group members of a proposed compromise of a class action. There is no need for me to repeat those matters in any detail other than to note the following overarching matters.
7 The task of the Court, in considering an application, has been described as an onerous one, especially where the application is not opposed. In part, this is because the Court inevitably must rely heavily on the legal representatives to put before it all matters relevant to the Court's consideration; there is always a danger in cases such as the present for the interests of a representative applicant and some or all of the group members to not wholly coincide.
8 Added to this, is the fact that there may be an acute commercial interest in either a funder of litigation and/or a solicitor in achieving a compromise in circumstances where, objectively viewed, it may be thought that it is in the interests of group members, or at least a proportion of group members, to continue with the agitation of their claims and seek them to be resolved by the Court.
9 As a result of this, the power under s 33V is often said to be part of the protective jurisdiction of the Court, not unlike the protective role of Court in relation infant settlements or comprise of litigation involving persons suffering under some form of disability.
10 Importantly, and a matter that I have stressed during the course of the exchanges with group members during the hearing, the focus of the Court is on the settlement arising out of the conditional paction agreed between the parties. It is not some sort of inquiry into what other settlements might have been thought to be appropriate, or the identification of a figure that the Court regards as the optimal reflection of the underlying merits of the case between the parties.
11 Reasonableness, as one would expect from such an amorphous term, is a range. And the question for me is whether the settlements as proposed fall within a range the Court can characterise as fair and reasonable. Connected to this, is that it is not the Court's role to second-guess the strategic decisions made by the applicants' legal representatives, and that there is no definitive set of factors that may or may not be taken into account in assessing whether the conditional settlement is reasonable.
12 Although there are factors which have been stressed which deserve particular attention (some of which are referred to in the Class Actions Practice Note (GPN-CA) at para 15.5), the inquiry is not in any way fettered so as to amount to a "check-list". It is a broad, evaluative and impressionistic decision, which is not to be seen as a form of calculus.
13 Ordinarily, there is presented to the Court on these applications a confidential opinion prepared by counsel acting for a representative applicant. This opinion will, as with all ex parte communications to a court, candidly disclose matters within counsel's knowledge, in the present case, being information which either supports or detracts from the conclusion that the settlement is fair and reasonable. In this respect, this case has been unusual. For two reasons, I thought it appropriate to indicate to the parties well in advance of the settlement hearing that I wished, to the extent possible, for this application to be determined on the basis of materials which were freely available to group members.
14 The first reason reflects a fundamental tenet upon which our system of justice operates, namely, the principle of open justice. That principle is one of the most important aspects of our system of justice, and an essential feature of the judicial process: See John Fairfax Publications Pty Ltd v Attorney-General (NSW) [2000] NSWCA 198; (2000) 181 ALR 694 (at 703-4 [52]-[57] per Spigelman CJ). The reason why open justice is important, and why it is described as a primary objective of the administration of justice in s 37AE of the Act is that, to the extent possible, proceedings in courts of justice should be exposed fully to public and professional scrutiny and, if necessary, criticism, by well-informed observers who are able to follow and comprehend the information that is taken into account in making decisions which are relevant to their interests. If interested observers are able to follow and comprehend the evidence, the submissions of parties, the submissions and the reasons for judgment, then the public confidence in the administration of justice will be enhanced and, as Gibbs J (as his Honour then was) observed in Russell v Russell (1976) 134 CLR 495 (at 520), "confidence in the integrity and independence of the courts" will be maintained.
15 By reason of this approach, the very comprehensive and detailed opinions provided in the Oakey and Katherine class actions in particular, which are public documents, are testament to the fact that information sufficient to reveal the processes of reasoning which lead to an application for a settlement approval, can be advanced in an open way without the need for confidentiality orders and the attendant lack of transparency.
16 Naturally enough, there will be many cases where confidentiality orders are appropriate. In such cases, there is a necessity for there to be a candid exchange, which is not revealed to a respondent. But there will be cases, and these three complex class actions are examples, where, if proper attention is given to the way in which relevant information can be expressed, the interests of transparency and open justice can be facilitated.
17 The second reason why I considered that the applications should be determined by reference to publically available materials was that the respondent, the Commonwealth of Australia, took the view that it would not waive any potential application it may make for me to be disqualified from hearing the initial trial, if I had access to confidential material.
18 The Commonwealth also took this position in relation to a related class action which has been recently commenced involving PFAS contamination at a number of other sites throughout the Commonwealth. The position taken by senior counsel for the Commonwealth was that this was an entirely appropriate approach, as it was not evident there was a need to have access to confidential material and this was not some form of "technical" stance taken by the Commonwealth. I have no doubt that both those appearing and instructing on behalf of the Commonwealth took this view advisedly and after due consideration and believed it was an appropriate course to take.
19 This is a matter upon which minds might reasonably differ. However, it certainly would have assisted in both the case management and hearing of the applications if I could have had an assurance that the point would not be taken, in circumstances where the only information that would be available to the Commonwealth, if an application for apprehended bias was to be made at a later stage, was the knowledge that I had access to unspecified confidential information. In any event, there is no need to further dwell on this aspect of the matter. As it turned out, for reasons that I will explain, I did not consider it necessary to have regard to any confidential information.