Tutton v Chubb Insurance Australia Limited

RANGIAH J: 1 The applicants seek the approval of the Court pursuant to s 33V(1) of the Federal Court of Australia Act 1976 (Cth) (the Act) to discontinue the proceeding. 2 The proceeding is a representative proceeding commenced under Part IVA of the Act on behalf of 39 individuals. The applicants seek compensation and other relief for the respondent's alleged contravention of s 45 of the Fair Work Act 2009 (Cth). The applicants allege that the respondent failed to pay the members of the group the minimum rates of pay, overtime and penalties prescribed under the Banking, Finance and Insurance Award 2010. 3 The parties have agreed that the proceeding should be discontinued, with no order as to costs. 4 The applicants' solicitor deposes that he had expected to be able to obtain funding from a litigation funder for the proceeding, but was unable to obtain such funding. He then asked the members of the group to fund the proceeding. Thirteen members of the group agreed to do so, while there was either no response or no positive response from the 26 other members of the group. The solicitor then ceased acting for those 26 members. The remaining members have provided instructions for the discontinuance of the proceeding. 5 Section 33V(1) of the Act provides that a representative proceeding may not be settled or discontinued without the approval of the Court. 6 I accept that it is impracticable for the applicants to continue to prosecute the claims as a representative proceeding without adequate funding. 7 It is necessary to consider whether the discontinuance or settlement adequately protects the interests of the group members as a whole: Simonetta v Spotless Group Holdings Limited [2017] FCA 1071 at [13]; Wotton v Queensland [2009] FCA 758 at [40]. 8 There will be no adverse costs consequences for the members of the group. The Court was informed that the parties agree that the rights of the 13 remaining group members to pursue individual claims are preserved and that there are no time limitation issues in the short-term. It appears that approval of the discontinuance will do no more than return the members of the group to the position that they were in before the proceeding commenced. 9 I am satisfied that the interests of the group members will not be adversely affected by the discontinuance of the proceeding in any material way. 10 The discontinuance of the proceeding will be approved pursuant to s 33V of the Act. 11 The applicants' solicitor will be ordered to provide a copy of this judgment to each of the original 39 members of the group to ensure that they are made fully aware that the proceeding has been discontinued. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.