Williams v FAI Home Security Pty Ltd

The proposed settlement 14 On 23 October 2000 the parties reached an "in principle" agreement to settle the proceeding, subject to the approval of the Court. Pursuant to the agreement, money will be paid only to those group members who made themselves known to Maurice Blackburn Cashman and signed a fee and retainer agreement with them and had provided instructions that they purchased the alarm systems and that the purchase was financed by a loan contract with FAI Insurance. I refer to these group members hereafter as the "known group members". Subsequent to the parties reaching the "in principle" agreement on 23 October 2000, fourteen more group members contacted the solicitors up to 15 December 2000. Four hundred and seventy‑four known group members are entitled to participate in the proposed settlement and would be bound by the settlement if it were approved. 15 The terms of the proposed settlement are as follows: · The respondents will pay each of Maurice Blackburn Cashman's 495 clients $1,000 within twenty‑eight days of a Court order approving the settlement provided that: (a) if any of the solicitors' clients have a debt outstanding to FAI Finance, then the $1,000 will be applied in reduction of the debt; (b) if any of the solicitors' clients did not purchase an alarm system or did not finance such purchase with FAI Finance, they will be excluded from the settlement. · The respondents will, within twenty‑eight days of the date of a Court order approving the settlement, pay to the solicitors $415,000 on account of their costs in the proceeding and in another Supreme Court proceeding. Of this sum $376,135 is to be paid in respect of their costs and disbursements in the proceeding in the Federal Court. · On payment of the costs, the solicitors and their clients will provide a release to the respondents. · The respondents will pay the costs of any notification to any group members other than the solicitors' clients ordered by the Court in connection with the approval of the settlement. · The solicitors are to enter into an agreement that they will not accept instructions from any person in relation to the sales practices of the respondents in relation to the alarm systems up to the date of settlement. · The offer by the respondents covers persons who have contacted the solicitors after 23 October 2000 and who have entered into a fee and retainer agreement with the solicitors, provided that the total number of persons to whom the respondents are required to make payment does not exceed 495. · The settlement is conditional upon: (a) The Court ordering that the definition of the group in the proceeding be amended so as to limit it to the solicitors' clients who purchased an alarm system on or after 9 July 1993 with finance provided by FAI Finance. (b) The Court approving the settlement pursuant to s 33V of the Act and ordering that the proceeding be dismissed with no order as to costs. The effect of the first and last of these provisions is that the only beneficiaries of the settlement will be the known group members. There are other terms of the settlement which it is not necessary to set out for present purposes. 16 The applicants have accepted the offer made by the respondents to them personally and no longer wish to be the representative party in the proceeding. No known group member has rejected the offer of settlement and Maurice Blackburn Cashman does not hold instructions from any group member to continue with the proceeding, or to be substituted as the representative party. The solicitors have received advice from senior and junior counsel to the effect that the offer of settlement made to the known group members is fair and reasonable and that the settlement will not adversely affect the rights of the present group members. The solicitors have also received a report from an independent technical expert which expresses conclusions in relation to technical aspects of the alarm systems.

Should the settlement be approved 17 The applicants' motion seeks the following orders: · That the definition of the group members in the application be amended by deleting the description of the group members by reference to persons who on or after 9 July 1993 entered into sales contracts with FAI Home Security to purchase the alarm systems and to whom the representation was made and who acted on the faith of the representation and suffered loss and damage, and by substituting for that description the names of each of the 474 known group members. · That the Court approve the settlement pursuant to s 33V of the Act. · That pursuant to s 33X of the Act the respondents give notice to the present group members notifying them that the applicants and the known group members have reached a settlement of their claims with the respondents, that the Court permitted the applicants to amend the application to confine the representative proceeding to the applicants and known group members, and that if a person was a group member but did not instruct Maurice Blackburn Cashman to act for them, no offer of settlement is being made to them and their rights are unaffected by the settlement except in relation to the running of any limitation period in respect of a claim they may have. 18 Section 33V of the Act provides: "(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 of the distribution of any money paid under a settlement or paid into the Court." Section 33X(4) of the Act provides: "Unless the Court is satisfied that it is just to do so, an application for approval of a settlement under section 33V must not be determined unless notice has been given to group members." 19 Ordinarily the task of a court upon an application such as this, is to determine whether the proposed settlement or compromise is fair and reasonable, having regard to the claims made on behalf of the group members who will be bound by the settlement. Ordinarily in such circumstances the Court will take into account the amount offered to each group member, the prospects of success in the proceeding, the likelihood of the group members obtaining judgment for an amount significantly in excess of the settlement offer, the terms of any advice received from counsel and from any independent expert in relation to the issues which arise in the proceeding, the likely duration and cost of the proceeding if continued to judgment, and the attitude of the group members to the settlement. In In re General Motors Corporation Pick‑Up Truck Fuel Tank Products Liability Litigation 55 F.3d 768 (3rd Cir. 1995) at 785 the United States Court of Appeals for the Third Circuit referred to the nine‑factor test it had adopted: "… to help district courts structure their final decisions to approve settlements as fair, reasonable and adequate as required by Rule 23(e) [which requires court approval for settlement of class actions]. See Girsh v Jepson 521 F.2d 153, 157 (3d Cir. 1975). Those factors are: (1) the complexity and duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining a class action; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement in light of the best recovery; and (9) the range of reasonableness of the settlement in light of all the attendant risks of litigation." (See also County of Suffolk v Long Island Lighting Co 907 F.2d 1295 (2nd Cir. 1990) at 1323, 5 Moore's Federal Practice 3rd ed at p 23‑348). This nine‑factor test is equally helpful in the Australian jurisdiction and I find it a useful guide in considering the present proposed settlement. 20 The proposed settlement is complicated by the fact that the settlement offer is not being made to the present group members. Rather, it is specifically limited to persons who have contacted Maurice Blackburn Cashman, the solicitors for the applicants, and who have signed a fee and retainer agreement with them. If I limit my consideration of the settlement to whether it is fair, reasonable and adequate in relation to the interests of the group members who will be bound by it, and whose causes of action against the respondents will merge in the settlement agreement, if approved by the Court, I am satisfied that the settlement is fair, reasonable and adequate, having regard to the nine‑factor test to which I have referred and to the advice of counsel and the technical expert retained by the applicants' solicitors. 21 But should I so limit my consideration? What about the interests of the present group members who are not known group members, that is to say present group members who have not contacted Maurice Blackburn Cashman or who have not signed a fee and retainer agreement with them? Counsel for the applicants (who until the application is amended represents the interests of all present group members) submitted that the rights of the present group members who are not parties to, or bound by, the proposed settlement are unaffected by the settlement and that they will be free to pursue any action against the respondents if they are so inclined. It was said that their interests and rights were preserved by the settlement. That may be so as a matter of theory and principle, but is it correct from a practical point of view? The representative action has been commenced to advance their interests. Should they be removed from the vehicle which has the potential to vindicate their rights if the causes of action against the respondents can be established? More importantly, should they be removed from this vehicle before being given notice of the proposed settlement? Is it practical to say that such group members can commence another representative proceeding? 22 I consider that a potential conflict of interest arises where a representative party in a representative proceeding seeks to settle the proceeding by limiting or narrowing the definition of the group so as to exclude some of the group members from the settlement. It is in the interests of those who can obtain a benefit under the settlement to have it approved rather than to have the proceeding continue. It is not in the interests of those who will not obtain a benefit under the settlement to have it approved with the result that the proceeding will terminate. Rather it is in their interests for the proceeding to continue, at least until it generates an offer of settlement which will give them a benefit. If the proposed settlement is approved, then they will be cast adrift from any representative proceeding and they will become group members without the benefit of a representative proceeding. The present proceeding calls to mind the observation of the United States Supreme Court in Deposit Guaranty National Bank v Roper (1980) 445 US 326 at 339: "Where it is not economically feasible to obtain relief within the traditional framework of multiplicity of small individual suits for damages, aggrieved persons may be without any effective redress unless they may employ the class‑action device." 23 This potential conflict of interest must be resolved by considering how best to have regard to the interests of the present group members who are not beneficiaries of the settlement. At the least they should be given notice of the proposed settlement and thereby be given the opportunity to put their views before the Court before a determination is made whether to approve the settlement. 24 Thus far I have considered whether in determining whether to approve the settlement, as a matter of principle, I should have regard to the interests of those present group members who will not benefit from the settlement. That issue must also be considered by reference to the provisions of s 33X(4) of the Act. 25 In the present case I consider that the notice required to be given pursuant to s 33X of the Act is required to be given to the present group members, that is to the group members as presently defined in the application. It is to be given, not only to those present group members who will be receiving payments as part of the settlement, but also all present group members, as presently defined, who have not made contact with Maurice Blackburn Cashman or signed fee and retainer agreements with them. I do not consider that the notice to be given pursuant to s 33X(4) is only to be given to the group members who will be bound by the settlement. As the settlement proposed is a settlement of the proceeding as presently constituted, the notice pursuant to s 33X(4) must be given to those persons who are group members at the time the application for approval of the settlement is made. At that point of time the present group members, as presently defined, are much greater in number than the known group members who will be bound by the settlement. It is only if the settlement is approved that the group members are restricted to those who have signed fee and retainer agreements with Maurice Blackburn Cashman. 26 Counsel for the applicants submitted that this approach to the construction of s 33X(4) was artificial because the same result the applicants sought to achieve could be obtained in two stages. First, an amendment could be sought and made to the group description restricting it to the more confined group. Secondly, approval could be sought for the settlement of the proceeding which, at the time of the application for that approval, would relate to the more confined group of purchasers of the alarm systems, all the members of which were in favour of the settlement. 27 I do not consider that the applicants could, in this way, avoid notice of the proposed settlement being given to all present group members. If an application for amendment of the group description was sought, a reason for such amendment would have to be given to the Court. I must assume that the Court would be told the true facts. If the reason for the amendment was for the purposes of settlement, then the same considerations would arise as are presently before the Court. In any event, I would expect that the Court would then require notice of the proposed amendment to be given to all group members, pursuant to s 33X(5) of the Act which empowers the Court at any stage to "order that notice of any matter be given to a group member or group members". In such circumstances all the present group members would be informed of the proposed settlement. Thus a two‑stage procedure would still result in all the present group members being informed of the proposed settlement. 28 The policy and purposes behind Pt IVA of the Act were identified in the second reading speech for the Bill which introduced Pt IVA into the Act in a passage quoted by the High Court in Wong v Silkfield Pty Ltd (1999) 199 CLR 255 at 264: "The Bill gives the Federal Court an efficient and effective procedure to deal with multiple claims. Such a procedure is needed for two purposes. The first is to provide a real remedy where, although many people are affected and the total amount at issue is significant, each person's loss is small and not economically viable to recover in individual actions. It will thus give access to the courts to those in the community who have been effectively denied justice because of the high cost of taking action. The second purpose of the Bill is to deal efficiently with the situation where the damages sought by each claimant are large enough to justify individual actions and a large number of persons wish to sue the respondent. The new procedure will mean that groups of persons, whether they be shareholders or investors, or people pursing consumer claims, will be able to obtain redress and do so more cheaply and efficiently than would be the case with individual actions." It is inconsistent with this policy and these purposes for a representative proceeding to be commenced by a representative party pursuant to Pt IVA of the Act and then to allow the applicants to settle the proceeding, not only for themselves but for some only of the members of the group as defined in the proceeding, leaving the remaining members of the group to pursue such avenues of claim as may be open to them either individually or jointly, without those members first being given the opportunity to be heard on their proposed exclusion from the group of the members who are to obtain a benefit from the proposed settlement. So much is recognised by s 33W of the Act which relevantly provides: "(1) A representative party may, with leave of the Court, settle his or her individual claim in whole or in part at any stage of the representative proceeding. (2) A representative party who is seeking leave to settle, or who has settled, his or her individual claim may, with leave of the Court, withdraw as representative party. (3) Where a person has sought leave to withdraw as representative party under subsection (2), the Court may, on the application of a group member, make an order for the substitution of another group member as representative party and may make such other orders as it thinks fit. (4) Before granting a person leave to withdraw as a representative party: (a) the Court must be satisfied that notice of the application has been given to group members in accordance with subsection 33X(1) and in sufficient time for them to apply to have another person substituted as the representative party; and (b) any application for the substitution of another group member as a representative party has been determined. …" A representative party is entitled to reach a settlement with a respondent. However, before being allowed to withdraw as representative party, he or she must give notice to group members to ensure, if any of those group members desire, that another group member can be substituted as the representative party to enable the representative proceeding to continue. 29 The policy of Pt IVA of the Act is against allowing a respondent in a representative proceeding to settle with a representative party, and not with other members of the group, in such a manner as to cut the proceeding adrift from the umbrella of Pt IVA of the Act, without giving the other group members the opportunity to maintain the character of the proceeding as a representative proceeding pursuant to Pt IVA. 30 The inappropriateness of allowing such a situation to occur was recognised by the majority of the Supreme Court of the United States of America in Deposit Guaranty National Bank v Roper (supra). Although the observation to which I wish to refer was made in the context of considering whether settling a claim made by named plaintiffs in a class action before the relevant class had been certified by the Court in accordance with rule 23 of the Federal Rules of Civil Procedure for the United States District Courts rendered moot an appeal against a refusal to certify the class pursuant to rule 23, the observation is apposite to the issue presently before the Court. Burger CJ, delivering the opinion of the majority of the Court, said at 339: "Requiring multiple plaintiffs to bring separate actions, which effectively could be 'picked off' by a defendant's tender of judgment before an affirmative ruling on class certification could be obtained, obviously would frustrate the objectives of class actions; moreover it would invite waste of judicial resources by stimulating successive suits brought by others claiming aggrievement. It would be in the interests of a class‑action defendant to forestall any appeal of denial of class certification if that could be accomplished by tendering the individual damages claimed by the named plaintiffs." In the present context, that observation may be translated by saying that it would frustrate the policy and purposes of Pt IVA to allow a respondent to a representative proceeding to settle with a representative party and some of the group members without giving the remaining group members, not beneficiaries of the proposed settlement, the opportunity, by notice, to consider the consequences of the proposed settlement and to consider whether any of them wished to take over the role of representative party. If notice must be given pursuant to s 33W to group members by a representative party who has settled his or her claim and wishes to withdraw as representative party so as to enable the representative proceeding to be continued by a substitute representative party, why, as a matter of policy and principle, should not such a notice also be given in circumstances such as the present where the result of the proposed settlement by the representative party and some of the present group members will be the termination of the representative proceeding? The answer to my mind is clear, such a notice should be given. 31 Therefore, unless I am satisfied that it is "just to do so", it will be necessary for a notice in relation to the proposed settlement to be given pursuant to s 33X to all present group members before I finally determine whether to approve the settlement. 32 In the circumstances of the present case, I am not satisfied, for the purposes of s 33X(4) of the Act, that it is just to determine the application for approval of the settlement without notice of the proposed settlement having been given to all present group members. Counsel for the applicants submitted that it was just to determine the application without notice having been given to all present group members because otherwise the settlement for the 474 known group members would not proceed and they would lose the benefit of that settlement. It appears from the offer of settlement made by the respondents, that the settlement offer is only made to no more than 495 group members. It was submitted that the rights of the present group members, not beneficiaries of the settlement, were preserved and not impaired in any way. Further, it was said that it was very difficult to take their interests into account because one does not know what their instructions would be on the individual elements of their claim, particularly whether the representation was made to them and whether they relied on it. It was said that a new class action brought on behalf of the present group members, not beneficiaries of the settlement, was more desirable than continuing the present representative proceeding at the cost of a settlement that is in all respects certain. 33 The competing interests were identified starkly when counsel for the applicants posed the question - is it right that those people, who did not notify the solicitors, should be prevented from settling in order to preserve in some indefinite way the rights of those who are unknown? Counsel answered the question by saying that it was demonstrably unfair to deprive a certain group of a certain settlement. However, I consider that the answer to that question at the present time is - not necessarily. That is to say, I consider that I should not determine whether to approve the settlement until after a notice of the proposed settlement has been given to all present group members and any response of such group members to the notice is known. 34 The result of that notice may be that the solicitors for the applicants are contacted by more present group members who fit into the category of those entitled to participate in the settlement, leaving on one side for the moment the maximum limit of 495 group members imposed by the respondent. No doubt it would be said that if a notice of the proposed settlement is given, then it is to be expected that many more purchasers of the alarm systems will make themselves known to the solicitors for the applicant, with the result that many of them would be excluded from the settlement because of the upper limit imposed by the respondents. In such circumstances, it might not be appropriate to approve the settlement which only benefits some of the known group members and not all of them. 35 The determination of whether it is just to determine the application for approval of the settlement, without notice having been given to all present group members, must take into account not only whether it just in the interests of the known group members, but also whether it is just in the interests of those present group members who will not be beneficiaries of the settlement. 36 Although an injustice may occur to the known group members if they do not obtain the benefit of the proposed settlement, I consider an even greater injustice will be perpetrated upon the present group members (other than the known group members) if I were to approve the settlement, without present group members having been given notice of the proposed settlement and the application for approval of it. This injustice will arise in two respects, both of which relate to the possibility, or even a probability, that a significant number of present group members have been dissuaded from contacting Maurice Blackburn Cashman and may be under a misapprehension as to the current state of the proceeding and what steps they should have taken, if any, to obtain the benefit of being a group member and bound by the proceeding. 37 The first respect in which such injustice will arise is as follows. On 7 February 2000 on the "A Current Affair" program to which I have already referred, a representative of Maurice Blackburn Cashman said: "The members of the class are ordinary Australians who have purchased FAI Security home alarms in good faith. … Well it's a very important case for consumers. A hundred and fifty thousand devices of this type were sold throughout Australia and New Zealand. It's a big case." A present group member who saw and heard this statement would have had good reason to believe that he or she might be a beneficiary of the proceeding. There was nothing said on the program which indicated to group members that they might need to contact Maurice Blackburn Cashman in order to be a beneficiary of the proceeding. Indeed, at that time they did not have to do anything in order to be a member of the group on whose behalf the proceeding had been commenced. The provisions contained in Pt IVA of the Act adopt an "opt out" procedure for the purposes of determining who is bound by any judgment in a representative proceeding. Persons who come within the group defined for the purpose of the proceeding will be bound by the proceeding if they do nothing. They only have to take a positive step, that is opt out of the proceeding, if they do not wish to be bound by any judgment obtained in the proceeding. 38 Where a representative proceeding is commenced in which the group members are defined in a particular way, and where potential rights are created (if group members do not opt out of the proceeding), I consider it inappropriate, unfair and unjust to those group members to allow the definition of the group to be narrowed for the purpose of obtaining a settlement for that narrowed group without the members of the wider group being put on notice of what is proposed. More particularly is this so where the time has not yet arrived for the giving to group members of an "opt out" notice pursuant to s 33X(1) of the Act. The practical consequence may well be that if the representative proceeding is amended so that the group is narrowed and the settlement is achieved by the narrowed group with the result that the proceeding is dismissed, the group members not entitled to participate in this settlement, because of the narrowing of the group, will have no opportunity either to pursue their claims or have them pursued by someone on their behalf. 39 Counsel for the applicants correctly pointed out that if the settlement is approved, the rights of the group members who do not form part of the settlement class as against the respondents will be unaffected. That is to say, those group members will not be bound by the settlement and will be free either to bring, or join in the bringing of, further proceedings against the respondent. This may be true as a matter of theory and principle, but, as I have noted earlier, it fails to recognise the practical advantage of the current representative proceeding. The whole purpose of a representative proceeding is to enable persons with relatively small claims to have their claims pursued, where the costs of pursuing individual claims is impractical having regard either to the quantum or nature of the claim. 40 The respondents have limited their settlement offer to 495 group members so that, on one view, there is no point in giving notice to the group members as present defined. Even if, as a result of the notice, a number of them wish to participate in the settlement, if the total number exceeds 495 then such a settlement will not be achieved because it is has not been offered. Nevertheless, as I have noted earlier, I consider it relevant for the Court to know the response of group members, as presently defined, to the proposed settlement. It may well be that a substantial number of group members, as presently defined, will respond to a notice of the proposed settlement by seeking to participate in it. Depending upon the nature of the response, that would be a relevant matter to take into account in determining whether the settlement should be approved. Similarly, if there was very little response to the notice, that would also be a matter to be taken into account in determining whether to approve the settlement. It would also be relevant to give the respondents the opportunity to consider the nature and extent of any variation to their offer they might wish to make in either of these events. 41 In Lopez v Star World Enterprises Pty Ltd (In Liq) [1999] FCA 104 Finkelstein J observed at [16]: "Accordingly, the task of the Court in considering an application under s 33V is indeed an onerous one especially where the application is not opposed." The task is more onerous in circumstances such as exist in the present case where a conflict of interest appears within the class of group members as presently defined. Where there has been publicity about the proceeding and the group members have not been given any notice or information as to the status and currency of the proceeding by the solicitors prosecuting the representative proceeding, I do not consider it appropriate to approve any settlement of the proceeding which excludes members of the group as presently defined from a settlement, without giving them the opportunity to be heard in relation to the settlement. What is important is that group members should be informed at relevant times of the nature of the representative proceeding under which they may obtain a benefit, and of their rights in relation to that proceeding. 42 I turn to the second respect in which injustice will arise if I approve the settlement without notice of the proposed settlement being given to present group members. The injustice to which I have already referred is exacerbated by the particular misstatements in the publication of the "A FAIR GO" documents to which I have referred at [9] and [10] above, and the fact that a correction notice has not yet been sent to group members. As I observed in my earlier reasons for judgment in the passages extracted at [11] above, I consider that the incorrect statements were calculated to engender antipathy towards the proceeding and raise doubts about the integrity of the proceeding or the value in being bound by it. What is also important for present purposes is that those statements were calculated to turn group members away from Maurice Blackburn Cashman. If the settlement is allowed to proceed without notice first being given to all present group members, the respondents will arguably be the beneficiaries of misleading conduct which has caused group members not to contact Maurice Blackburn Cashman and thereby not be eligible to be considered for the purposes of participating in the proposed settlement. 43 I consider it quite inappropriate and unjust that a settlement should be approved without notice of it being given to all present group members, in circumstances where the settlement has as its cornerstone the fact that group members have made contact with the solicitors and signed a fee and retainer agreement with them, and where the respondents have made incorrect statements calculated to cause group members to turn away from making contact with those solicitors. In my view it is unjust to approve the settlement and thereby exclude such group members from it, without first bringing to their attention, via a correction notice, the fact that incorrect statements have been made which bear upon issues in the proceeding. 44 Just as the incorrect statements should be corrected before group members are called upon to decide whether to opt out of the proceeding, they should also be corrected before consideration is given to the approval of the settlement, which has come about in circumstances where group members have been subjected to a distorted view of the proceeding. 45 I am therefore not prepared to consider whether I should approve the proposed settlement until the correction notice, which I have already ordered, is sent to present group members and present group members are also given notice, of the terms of the proposed settlement. Both of these matters might be addressed in the one notice but it would be necessary to hear submissions as to the form of any such notice if the applicants wish to proceed with their application for approval of the settlement. 46 It follows that I am not prepared to give the applicants leave to amend the application so as to limit the group members in the manner sought. I am also not prepared to approve the settlement in its present terms, nor am I prepared to order that notice be given to group members in the form proposed, that is to say, in a form which informs present group members that the proceeding has been settled with known group members. I am, of course, prepared to consider any application to approve a settlement of the proceeding after a notice or notices of the type to which I have referred have been sent to the present group members. It would be desirable for the Court to approve the terms of any notice of the proposed settlement to be given to present group members. 47 If a further application is made to the Court to approve a settlement of the proceeding, there is another matter that would need to be addressed which was not adverted to by counsel or by myself in the course of argument. This relates to that part of the proposed settlement under which the respondents will pay the applicants' solicitors $376,135 in respect of their costs and disbursements in this proceeding. This part of the settlement is as much subject to the approval of the Court as is the proposal that each known group member receive $1,000 in one form or another. No evidence was placed before the Court as to the manner in which the amount had been ascertained, or that it was fair and reasonable having regard to the work undertaken and performed by the solicitors. I consider it necessary that evidence be placed before the Court as to these matters. I agree with the observation of Merkel J in Johnson Tiles Pty Ltd v Esso Australia Ltd (1999) 94 FCR 167 where his Honour said at 176: "I have no difficulty in accepting that Pt IVA could lose much of its utility if solicitors acting for representative parties are not able to be fairly and adequately reimbursed in respect of the costs they incur in a representative proceeding where they are reliant on a 'successful outcome' for payment of their fees. I also accept that under Victorian law solicitors can properly be rewarded by their clients for the cost risks they undertake by entering into conditional costs agreements that can include an uplift fee, being a premium not exceeding 25 per cent of the costs and disbursements incurred by the solicitors." I am not querying the amount proposed, I am simply requiring that evidence be placed before the Court from which the Court can draw relevant conclusions as to the fairness and reasonableness of the costs to be paid. 48 As I am not prepared to approve this settlement in its present form, I consider that the appropriate order is that the applicants' notice of motion filed 12 December 2000 be dismissed. I will hear the parties as to the form of order which should be made consequent upon these reasons. I certify that the preceding forty‑eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Counsel for the Applicants: JWK Burnside QC and P Bingham

Solicitor for the Applicants: Maurice Blackburn Cashman

Counsel for the Respondents: J G Santamaria QC & C M Caleo