Tasfast Air Freight Pty Ltd v Mobil Oil Australia Ltd [2002] VSC 457

5. The group proceeding has been settled, subject to the approval of this Court, in terms which require the parties to further negotiate and settle each remaining outstanding claim. The settlement, in broad terms, is that following approval of this compromise the defendant will make offers to any remaining claimants who have not yet had their claims dealt with. Those offers will either be accepted, or if they are not accepted they will be referred to an assessment panel who will assess the loss claimed by the claimant without any need for the claimant to prove fault on Mobil's part; that is to say the claimant will not need to prove either the existence of a duty of care, or breach of that duty by Mobil to be eligible for compensation.

8. There are deadlines for offers and payments, such that all assessments, if they are required, will be completed by 20 June 2003, and in each case where compensation is either accepted or assessed, payment will be made by the defendant within ten days. Affidavit material before the Court shows that most, if not all group members, have now claimed, and Mobil has already paid, something in the order of $25 million in compensation.

11. The principles upon which s.33V is based might be said to be those of the protective jurisdiction of the Court, not unlike the principles which lead the Court to require compromises on behalf of infants or persons under a disability to be approved. In a group proceeding, ex hypothesi, there may be persons, in the community who can be affected by such settlement but know nothing of it, despite extensive advertising, et cetera, though in this particular case that is most unlikely as the affidavit material before me suggests that all or virtually all claimants known to Mobil have made claims and are either having those claims dealt with or will have them dealt with shortly.

14. The settlement also requires that the applicant's party/party costs be paid by Mobil, other than in a circumstance which could occur on an assessment by the assessment panel which resulted in the claimant receiving less than 75 per cent of the amount which he/she or it originally claimed.

17. In helpful submissions filed on behalf of both parties, reference has been made to the principles that I must apply, and in particular in the submissions filed on behalf of the plaintiff, reference is made to a number of Federal Court cases. I simply mention them: ACCC v. Chats House Investments Pty Ltd 1996 71 FCR 250 a decision of Branson J where Her Honour stated that the purpose intended to be served by s.33V is obvious. Her Honour noted[1] that:

"It is appropriate for the Court to be satisfied that any settlement or discontinuance of representative proceedings has been undertaken in the interests of the group members as a whole, and not just in the interests of the applicant and the respondent".

21. Similar comments are referred to by the plaintiff's counsel in cases such as Lopez v. Star World Enterprises [1999] FCA 104; (1999) ATPR 41-678, and Wong v. Silkfield 2000 FCA 1421 in the Federal Court, and a decision of Goldberg J in Williams v. FAI Home Security (2000) 180 ALR 459. Each of the judges in those cases made comments not dissimilar to those which I have made in this case to the effect that the purpose of s.33V is to ensure the protection of parties who might not be present before the court.

24. Having read the affidavit material, considered the matters set out in the written submissions and inspected the settlement proposals in extenso, as they are set out in the deed, I am satisfied that it is appropriate to approve this settlement in the terms agreed, pursuant to s.33V of the Supreme Court Act 1986. Accordingly, there will be orders in terms of the draft orders submitted by counsel, those orders being that:

1. Pursuant to s.33V of the Supreme Court Act 1986 the scheme for settlement in the form of the settlement agreement annexed as Exhibit AAG3 to the affidavit of Andrew Alexander Grech, sworn 16 October 2002, is approved by the court.

2. That on or before 27 October 2002 the plaintiff, by its lawyers, notify group members of the approval of the settlement agreement and of the right of group members to opt out or participate in the settlement in accordance with the procedure set out in Exhibit AAG4 to the affidavit of Andrew Alexander Grech sworn 16 October 2002.

3. The defendant pay the plaintiff's party/party costs of the application.

5. That this order be drawn up by the solicitors for the plaintiff and signed by a Judge, pursuant to Rule 60.04 of the Rules of the Supreme Court.