Class Action Centre

Conference Keynote Address by The Hon Justice Lee

June 27, 2017


Click here to watch CARI research “Settlement Distribution Schemes”

 Full transcript of the Keynote:

Wayne Attrill: [00:00:06] Ladies and gentlemen obviously I'm new to the business of organising conferences because I didn't put one of those false starts in the program where they say registration and it's usually 15 minutes before the thing kicks off. So I just put the real start date which means that we're starting about 15 minutes late but it gives me great pleasure to welcome you all to this inaugural conference held under the auspices of the IMF Bentham class actions research initiative with the University of New South Wales. And I'm particularly delighted today to welcome such a broad cross-section of what you might term as the class action fraternity in Australia. We're very fortunate to have judges here from the Federal Court of Australia and the Supreme Court of Victoria and Queensland and a number of Australia's institutional investors were also represented. And of course they're an important part of the class action scene in Australia. We have some leading counsel partners from some of the major firms that are involved in this litigation on both sides of the ledger. We have some experts and we have insurers and of course we have a funder because no conference on class actions is complete without a funder. Now today's session if I can work this yes has essentially three components to it. First of all we have a keynote address from His Honour Justice Michael Lee of the Federal Court and His Honour's topic is the intriguing one of varying funding agreements and freedom of contract some observations which I think we'll all find quite interesting.

Wayne Attrill: [00:01:59] And following that there will be a presentation of a joint research paper by Michael Legg of the University of New South Wales and Rebecca Gilsenan at Maurice Blackburn on settlement distribution schemes which, of course, a very hot topic in class action litigation at the moment. There will then be a short break for refreshments and when we return we will have a panel discussion on the evergreen topic of achieving finality and class action litigation. Finally I've asked my colleague Clive Bowman who is the head of our Australian and Asian business to make some concluding remarks. And then you are warmly invited to join us all for a drink and something to eat on the balcony outside. So I hope that you will find today to be an both educational and enjoyable event. And I now pass to introduce seeing Justice Michael Lee who quite frankly for the people present in this room really does need no introduction. He was appointed to the Federal Court in only March this year and before his appointment had developed an enviable reputation and practice as one of the leading counsel in class action litigation in this country. Many of his ideas and arguments and submissions have strongly influenced the development of class action jurisprudence and I have no doubt whatsoever that his judgments will continue to do so for many years to come. Ladies and gentlemen Justice Lee.

Hon Michael Lee: [00:03:45] Thank you Wayne. I have prepared a paper which undoubtedly the people who came along here today can be distributed in due course.

Hon Michael Lee: [00:03:57] So given the fact that we're starting a little late what I thought I'd do is to pass something from the text. And to give you what is. That is some observations about.

Hon Michael Lee: [00:04:11] What might be described as a hot topic and that is the existence of the power to vary funding agreements. When that power from. From what statutory foundation does that power emanate. And thirdly the circumstances in which a court would exercise that power. Let me start with a bit of context. A little over 11 years ago I was sitting in my chambers and I received a brief from a firm of solicitors to draw the pleadings in the Multiplex Class Action. Much to my surprise having no real previous involvement with class actions, the brief was accompanied by some observations which suggested that those proceedings be commenced in the commercial list of the Supreme Court of New South Wales. When I enquired as to why it was that the proceedings were being commenced in the Supreme Court of New South Wales I was told that there was a decision of Justice Stone in the Aristocrat litigation which had said that which was said to be authority for the proposition that a group definition which had a criterion which was linked to either or that a team of solicitors or by analogy the execution of a funding agreement was inimical to the deliberative legislative choice to have a opt out rather than opt in regime. One of the great things about having an almost profound ignorance of an area of law is that you tend to approach it from first principles. And I went back and looked at Section 33C the Federal Court of Australia Act and it became evident to me when looking at it textual lately textually at least that those decisions must be plainly wrong.

Hon Michael Lee: [00:06:09] That is the decision in Aristocrat and two others which follow Justice Stone's decision. The reason is because as those of you aware of Section 33C and 33H those two gateway provisions they are deliberately undemanding and it provides that a representative who has various characteristics in common with a group of persons can commence a proceeding on behalf of some or all of them.

Hon Michael Lee: [00:06:40] What comes up regularly in class action proceedings is to my mind a misapprehension about group definition.

Hon Michael Lee: [00:06:50] I always found it useful to think of it in this way. A group definition is nothing more than a list of people a list of people who have a characteristic of having claims which owe their existence to something separate from an end and anterior to the preceding they are brought together by common characteristic in that sense. But really it's no more than an elaborate list of people. I gave the bold advice that these decisions were wrong and said we might as well commence it in the Federal Court and my solicitors had independently reached the same view I think and we had a funder who was willing to chance its arm and the rest is history because in the Multiplex litigation it was made plain in the Full Court that a criterion of group membership which had a reference to execution of a funding agreement was regarded as listless. Now in a sense that was a foundation for then an explosion in a way in securities class actions and other types of cases where there was an express reference to a funding agreement as being a criterion of group membership and that caused amongst other things some focus on funding agreements.

Hon Michael Lee: [00:08:15] Now what has occurred over the course of the last few years is that there has been a sensitivity which has been evident in a number of the decisions of the court probably starting with Justice Flick's decision in Pan Pharmaceuticals on the approval application through to today about the circumstances where the Court will take into account.

Hon Michael Lee: [00:08:51] The amount to be paid to a funder in the context of a Section 33V application.

Hon Michael Lee: [00:08:58] It could be said in respect of some funding agreements that that may well be a false analysis because what is happening is that the amount is being distributed to a group member the group member may have entered into quite separate bilateral relationships like it could have entered into by lateral relationships with its mortgagee in order to provide finance to run litigation.

Hon Michael Lee: [00:09:26] But given the centrality of the funding agreement to the institution and maintenance of the class action the Court has taken the view that is something which it must supervise certainly to prevent any abuse but the starting point of this analysis it seems to me is thinking about what it is that a class action which involves a funding agreement constitutes and we have an answer to that question. It's an answer that I didn't expect because it's just as confidently as I said the decisions in Aristocrat concerning funding or solicitor retainer criterion were plainly wrong. I also said that the suggestion that litigation funding litigation funding arrangements would amount to a managed investment scheme was an argument that wouldn't fly.

Hon Michael Lee: [00:10:22] Alas my confident prediction proved to be unfounded. But what the Full Court explained in Brookfield Multiplex and International Litigation Funding Partners Pte Ltd 2009, 180 Federal Court reports at page 11 is that these bilateral or with solicitor's trilateral arrangements pursuant to which are funded representative action was conducted was a managed investment scheme that should have been registered for the purposes of the Corporation Act. That's important not for the fact that it was an unregistered managed investment scheme because that has I think almost everyone in this room would understand gone away by reference by by reason of regulatory action. But what the court found is that a class action of this type has the following characteristics. The promises given by class action members to the funder were moneys worth contributed for the purposes of the litigation funding arrangement made in return for their acquiring rights to share in any judgments sum and the benefit of the funder's promises to meet legal costs. The opportunity to prosecute a claim with virtually no exposure to any cost or outgoings in the event of failure was a benefit accruing to class members produced as a result of all parties carrying out their obligations under this scheme and a successful prosecution of these claims would yield financial benefits to all participants in the scheme. There was the Full Court found a pooling of contributions affected by the class action members making their individual promises available for the purposes of the scheme for the benefit of not only the scheme group members but also for all other participants.

Hon Michael Lee: [00:12:23] So not only for the group members but also for all other participants in the scheme and the litigation funding arrangements were held by the Court to be a common enterprise and there was a shared purpose of pursuing class action claim successfully that would benefit the class action members, the funders and the solicitors. It was the Full Court found an enterprise it was economic in nature and considered to be commercial from at least the viewpoint of the funder and the solicitors. Now that analysis only goes so far when one has mass tort claims that the type that Justice Forrest has had to deal with over the course of the last few years. The analogy can only be pressed so far but that really is the starting point in understanding when it comes to interfering with arrangements. When the Court comes to determining whether or not it is going to vary arrangements in respect of a funding class action particularly in relation to securities class actions and the like what it's doing is tinkering with a scheme which has the sorts of characteristics that the Full Court explained. Now the reason why with some degree of hyperbole I've described this as a hot topic is that, in chronological order over the last 12 months, it's been three cases in the Federal Court which have dealt with this topic of the Court's approach to funding agreements and now in making any observations about these cases. I will be scrupulous I hope in not expressing definitive personal views. Even less so should what follows be interpreted as me making observations which in any way reflect thinking within the Court. But the three decisions are that of all highly experienced class action judges Justice Murphy in Ego, Justice Beech in Allco and Justice Middleton in Oz Minerals.

Hon Michael Lee: [00:14:38] Having been in all three cases at some stage I can say something about four common threads in the cases and an important difference. Let me deal with the similarities. First, they were all securities non-disclosure cases.

Hon Michael Lee: [00:14:53] Secondly they are all complex and hard fought and each case was settled very late one shortly before the hearing one on Sunday at about 5 p.m. the day before the hearing and one at 10:00 10:00 a.m. on the day of the hearing. Now I imagine immediately after me saying that you feel a great deal of sympathy for someone like me who had prepared an opening and had prepared for cross-examination and a case settles moments before it starts but don't feel too sorry for me because I was paid. And that leads to the third similarity. Vast amounts of costs were spent by the funder in order to get the case to the stage where it was settled and there was a risk of even vaster sums by way of adverse costs. Fourthly at the time of settlement each had groups which comprised members who had and some who had not signed funding agreements. Now I come to the difference to traditional closed class proceedings which were open for a short period prior to mediation and thereafter closed. There was a difference but I don't need to deal with it in relation to the matter of closure. The other was an open class which initially had been the subject of the first and unsuccessful attempt to get a common fund order and that was application made shortly before commencement. As most of you would know this involves the Court addressing the free rider problem by not making funding equalisation orders which redistribute the additional amounts received in hand by unfunded class members pro-rata against across the class as a whole but rather provides a solution whereby the funder is recompensed from the common fund of proceeds obtained by the class as a whole entity settlement or judgment. But over the opposition of the respondents of the Allco case remained an open class until after it was settled. What else happened on the settlement was that each was the subject of an application pursuant to Section 33V of the act.

Hon Michael Lee: [00:17:15] And that is the context in which this debate happened. And that context is terribly important in that the role of a Court under Section 33V as you would be aware is to determine whether or not the settlement is a fair and reasonable compromise of the claims made on behalf of the group members.

Hon Michael Lee: [00:17:41] Now in giving context to that very broad evaluative task the protective role of the Court has been emphasized in a number of decisions of the Court. Not only the Federal Court but also other courts which have a cognate representative preceding regime for example in Tasfast Air Freight, Justice Bongiorno explained the principles upon which Section 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.

Hon Michael Lee: [00:18:21] Now a similar state statement was made by the Full Court of the Federal Court in Richards where Justices Jacobson, Middleton and Gordon explained the role of the Court is important and onerous. It is protective. That word again it assumes a role akin to that of a guardian not unlike the role the Court assumes when approving infant compromises and Justice Perim said something similar in another case of Hodges. So what we have is the Court having a protective role and considering a proposed compromise. The only other important point I'd make about how the Court approaches Section 33V applications is that there is no perfect solution to any case. There is obviously a continuum of what might be regarded objectively as fair and reasonable and there might be different outcomes that fall within that band. But there will be something that there will be there'll come a point when a settlement can no longer be regarded as fair and reasonable.

Hon Michael Lee: [00:19:47] So the Court in my view at least is not to speculate about the content or terms of alternate settlements which might also be regarded as fair and reasonable but to reach a view on the proposed settlement that has been conditionally struck. Now applying these principles the Court came to a consideration of the settlements proposed in Ego, Allco and Oz Minerals and in particular whether as part of its protective and supervisory role it would possess the power to consider an appropriately varying the funding commission payable pursuant to the bargain struck in a funding agreement in Ego Justice Murphy used the comparison of the control the Court has over cost charge in proceedings. If a proposed settlement is fair and reasonable His Honour said except that the Court considers the claim legal costs to be excessive it is difficult to see why it would be appropriate or fair and reasonable the interests of class members for the court to make orders refusing settlement approval. That is the Court should proceed to approve or make the necessary orders under its supervisory role in respect of legal costs to reduce the amount of costs recovered by the practitioners. And His Honour said the same could be said where a proposed settlement is fair and reasonable in the interests of class members except that the Court considers the funding commissioner to be excessive.

Hon Michael Lee: [00:21:13] In such circumstances, it's quicker cheaper and more efficient to approve the settlement and reduce the funding commission and His Honour went on and then dealt with various challenges that were made in the context of that case to the power of the Court to proceed in that way and His Honour found that this was an order that had the relevant characteristics of being necessary or appropriate for the purposes of the plenary power contained in Section 33ZF said here for the Federal Court of Australia Act and that under an order made pursuant to that section the Court was empowered to disallow or reduce the funding commission if it thinks it is appropriate.

Hon Michael Lee: [00:22:05] Now in Allco, Justice Beech returned to this topic. And at paragraph 101 of that judgment and I'll read out this quote.

Hon Michael Lee: [00:22:22] Which was as follows. I consider that as part of any approved law under Section 33v I have power in effect to modify any contractual bargain dealing with the funding commission payable out of any settlement proceeds. It may not be a power to expressly vary a funding agreement as such rather it is an exercise of power under Section 33V2. For present purposes is not necessary to invoke Section 33ZF. I am empowered under 33V2 to make such orders that are just with respect to the distribution of any money paid under a settlement. If I make an order out of out of monies paid by a respondent a lesser percentage than that set out in a funding agreement to be paid by funder that's an exercise of statutory power which overrides the otherwise contractual entitlement. That is not an unusual scenario in many and varying context. It might also be said the funding agreement itself contains an implied term reflecting this override in any event.

Hon Michael Lee: [00:23:22] And finally in the recent Oz Minerals decision Justice Middleton made some observations concerning the power of the Court to effectively vary the commission paid to a litigation funder. And His Honour said Section 33ZF while expressed in broad terms are not specifically directed to settlement approvals but relate generally the power of the Court in representative proceedings a power to effectively vary contractual rights for litigation funder in the course of settlement approval is to be found in Section 33V specifically sub-section 2 I would not readily adopt the view that the very general powers found in Sections 23 (that's the general power of the Federal Court to make orders) or Section 33ZF which are not specifically directed to settlement approvals would provide the power to vary or override the contractual bargain.

Hon Michael Lee: [00:24:19] So in the wake of these three cases those comments are all made in the context of where orders were not made of varying funding agreements. The position remains a controversial. The source of power to vary funding agreements and assuming power exists the principles that should guide the exercise of discretion. No doubt the issue as to the existent source and exercise of this power will be further debated. My purpose today very briefly is to raise a few interconnected issues which might form part of that debate. I offer no solutions or answers but just matters which might be considered by people reflecting on this. First, as I pointed out the starting point is that according to the Full Court in Brookfield Multiplex which I referred to earlier the promises given by funded group members were part of a pooling of contributions and the provision of their individual promises for the purposes of an integrated scheme and the benefit of the benefit of scheme members and also the funder. If the litigation funding arrangement is seen as a common enterprise with a shared economic purpose and any interference or tinkering with funding arrangements can arguably characterise as a readjustment of the scheme to the benefit of one scheme participant to the detriment of another. It might be argued in these circumstances that any analogy with the power of a Court to supervise costs may not be a perfect one. Secondly no doubt regard must be had to the foundational and elementary matter well expressed in Toll and Alphapharm.

Hon Michael Lee: [00:25:59] When a man signs a document knowing it's a legal document relating to an interest in property he is in general bound by the act of signature legal instruments of various kinds take their efficacy from signature or on or execution such instruments are often signed by people who have not read and understood all of their terms but who are nevertheless committed to those terms by the act of signature and execution. In most common law jurisdictions and throughout Australia legislation has been enacted in recent years to confer a power on courts to ameliorate in individual cases hardship caused by the strict application of legal principle to contractual relations as a result. There is no reason apart from principle and every reason to adhere to it in cases where such legislation does not apply or is not invoked. Thirdly connected to this last point. The amelioration of individual cases of hardship is obviously enough generally regarded as a quintessentially individual assessment by reference to a statutory or equitable requirement to have regard to all the circumstances of a case and is not usually regarded as a principle be based basis to adopt rewriting bargains. Bargains in the broad. Fourthly the decisions in Allco and Oz Minerals indicate a preference and basing the exercise of power by recourse to Section 33V of the Act by making orders which are just to protect class members' interests. Needless to say that involves the court forming an assessment and this is expressly in the judgment of Justice Middleton as to what was described in Oz Minerals as a commercially realistic return. This in itself raises interesting questions. Is this to be assessed on the micro level the proceeding itself or a macro level that is across the whole of the funder's business. What are the appropriate economic comparators. These are very large questions.

Hon Michael Lee: [00:28:03] Fifthly, unlike the US Constitution, there is no contract clause in our constitution. As you may be aware the contract clause prohibits states but not the Federal Government or the courts from enacting any law which retrospectively impairs contract rights they came about because the framers were very concerned at the time of the Revolutionary War. There were a whole series of bespoke acts passed to benefit individuals release them from their debts. What we do have however is Chapter 3 and Chapter 3 arguments to effect that common fund orders did not involve an exercise of judicial power or were not incidental. The exercise of additional power were decisively rejected in Money Max. It seems to me quite plain that the Court can make orders creating or modifying rights or liabilities and the exercise of discretionary power. Provided the power is exercised according to legal principle and by reference to an objective standard. Having said this the possibility that novel arguments may be made by one scheme participant a funder when its property rights have been the subject of acquisitions to the benefit of another funded group members cannot be dismissed as fanciful. Sixthly a question when one is dealing with these issues is where does the boundaries lie. When I was a young solicitor there was a large retail bank who got into a form of embryonic litigation funding. Although primary directed to commercial inter-parties litigation from existing customers there were cases of which I've aware that in modern times - could well be in contemporary times - I'm not that old - could be regarded as apt to invoke Part 4A what the bank was doing was it was prepared to provide an overdraft in order to fund the litigation on the basis amongst other things there was a charge over the proceeds. In return the bank from recollection was charging the customers a rate which by today's standards would seem extraordinary around 22 or 25 percent. By reference to then prevailing interest rates represented an incremental margin of only 5 or 6 percent over unarranged overdraft rates. If a Part 4A case was conducted pursuant to such a facility would the Court step in and upset these commercial arrangements if it thought just to do so. If not what is the point of distinction used to sort out those types of arrangements and schemes which are the subject of the Court forming subjective views as to justness and the sort of schemes that we've been familiar with in class actions in Australia. Moreover if the Federal Court regularly uses broad statutory powers to amend funding arrangements does this mean it will be regarded as sound from a policy perspective for the Family Court of Australia which has a protective role in relation to children of marriage to take a similarly interventionist role in relation to funding agreements which are not uncommon now entered into between a parent with a primary care of children and an external funder in a property dispute in order to maximise the amount which might ultimately be paid to or preserve for for example the children's education. Again that's an example where the Court has a protective role. I only offer these matters as matters to consider. These seem to me to be very large questions. The topic is complex raises interesting matters and will no doubt be worked through thoroughly in the cases.

Hon Michael Lee: [00:31:47] There is of course nothing stopping a court faced with a Section 33V application where the Court forms a view that more money is being taken out than otherwise should have been taken out to refuse approval. I've seen this happen from personal experience in a different way where experienced lawyers in class action cases have said I cannot conscientiously put forward that settlement for approval.

Hon Michael Lee: [00:32:19] And this forms the basis of commercial renegotiation and between the participants in the scheme as to what is a fair thing in the light of the proposed settlement amount. Now some people would say that that perhaps is a more appropriate way of dealing with this problem. But let's not leave this topic without making it clear that there is a problem. There are cases we know of them. We've seen them. Regrettably I can say I've been involved in them where the amount ultimately paid to group members after costs and funding commission causes one real concern.

Hon Michael Lee: [00:33:03] It's part of the responsibility of all participants in this area including funders to ensure that there is a degree of commercial flexibility and recognition that the fact that although hindsight reasoning may not be an appropriate way of looking at what is a fair funding commission having regard to the risks of litigation when that funding commission has struck at the beginning of a case. If funded litigation particularly funded litigation of the type we've seen in the last 15 years or so is going to continue to be regarded as an efficient and appropriate way of quelling these large scale controversies these sort of arrangements cannot be abused. But in any event here instead of refusing approval the notion is that approval will be given but with the readjustment of rights imposed by the Court. In considering this prospect I'll leave you with this thought. Those of us in the room who are lawyers can probably remember that very early on in our studies we had cause to be introduced to the famous observations of Henry James Sumner Maine in his book Ancient Law where he explained that the movement to progressive modern societies has been in uniform in one respect and that it has been a movement from status to contract the right of a person of legal capacity to contract with whomever they choose and the right to hold another party to their bargain hard bedrock to a modern society governed by the rule of law or anything which can be seen as a departure from the exercise of those rights.

Hon Michael Lee: [00:34:54] These are the critical words in the absence of some form of catching bargain or other vitiating conduct in the broad and by reference to highly subjective evaluative standard is something which has to be carefully thought through and raises interesting questions that merit reflection. Thank you.

Wayne Attrill: [00:35:25] Thank you. Justice Lee I don't know. We have a few minutes. Would you mind if there were any questions for anyone. Does anyone have any questions for His Honour? It's a fairly thought provoking piece. Oliver?

Oliver: [00:35:50] There is an assumption that the Courts are scheduled to be in the funding commission is likely to go down because, for example, the case has become less risky at point of resolution than from the outset. Is it, at least, theoretically possible that the opposite could happen that the Court could be asked to increase the funding commission?

Hon Michael Lee: [00:36:09] As a matter of theory if the broader activity of exercise is to work out what it is just then I suppose you could say yes but the really the only the springboard of the power or the or the the point of departure for the exercise the power is the protective role the Court has. The Court doesn't. It's not sitting there as a what in the Whitlam years was the price as Justification Tribunal. And it's not making broad economic judgments about what is fair. So I personally would think it would be the only possible justification of intervening was the fact that it was necessary or appropriate in order to feel that protective role. So I couldn't conceive of a circumstance myself where you would regard it as an appropriate exercise as such a power in order to increase the amount that's taken away from group members. It doesn't seem to me to be right as a matter of principle.

Ben: [00:37:13] In the decision that has been made by the Court about whether it's fair or not how relevant is it likely to be the time risk value of money that the funder has to confront at the outset from the proceedings. Is that a relevant factor that is taken into account by the Court? Or is it really whether it is fair for the group members and don't really care about the funder's risk factor?

Hon Michael Lee: [00:37:39] Well that's why I referred to that interesting comment by Justice Middleton and Oz Minerals because he says that one of the things that the Court will need to consider is what amounts to a fair economic return to the funder. That as I said raises very large questions. How do you go about determining what is a fair economic return. It can't in my view simply just be by by way of reference to what other funders are charging in Australia.

Hon Michael Lee: [00:38:11] As we know there are massive differences between what is a fairly mature funding mark in Australia to other countries particularly in North America but of course there's a massive difference and that is both in Canada and the United States. One has contingency fees by which a large amount of money by reference to the size of settlement is being paid to the lawyers. One of the things that will be quite interesting it seems to me when one comes to this topic will be what happens following the Attorney General of Victoria's decision in order to raise the prospect at least for discussion and debate and perhaps a pilot program for contingency fees in that state. So it's really very difficult to see how that a how how prescriptive you can be in relation to that economic analysis. There seem to be a lot of integers that could be factored in. And and it's a very complex matter because the other point I made in the speech. Should it involve hindsight reasoning or not. I mean a bargain is struck at a time when one is looking ex ante not ex post. So you're looking forward to what the consequences could be rather than saying well at the end of the day three years down the track this has proved to be a pretty easy case. And there's been a large settlement or it's proved to be a very hard case and things haven't worked out as we had hoped through for example discovery and the like. So that's the problem when one comes to these very broad discretion based judgments and what as you all know the common law has often warned against in other discretions is the fact that the problem with very very broad discretions really untrammelled by fixed principles in their exercise is that gives rise to great uncertainty.

Hon Michael Lee: [00:40:30] And it means that people can't really plan their affairs looking forward. For example what are the precise terms of the scheme when it knows that it all could be up for grabs at the end of the day. It may be that this is something which would have to be worked out by a long series of cases where a whole series of factors are set are explained in more detail by legislative reform. But yes this is as I say there is a lot of unresolved questions it seems to me. But the problem is it's a reaction against what I think is a real problem. And speaking frankly there are people who are participants in the industry. Or likely participants in the industry where I've seen funding agreements which frankly are hard to justify including those funding agreements which have a return which is struck by reference to a multiple of legal costs as a minimum. Well you know that just can't work.

Hon Michael Lee: [00:41:42] It is rightly a scandal for there to be situations where group members in proceedings where there has not been a massive change in prospects since the commencement of proceedings recovering only a very very small return for their claim and in circumstances where legal costs have become extraordinarily large. And and funding commission taking on top of that means they're recovering very little. Now one hopes that you have practitioners people who a duties to the Court that makes sure make sure that that doesn't happen or seek to minimise the prospect of that happening. And one I'm sure the Court would expect that certainly senior practitioners involved in those sort of cases would be saying they're not putting things up for approval unless things change. But those sort of matters are ones that candidly the Court would expect to see put before it on a settlement approval.

Hon Michael Lee: [00:42:51] And look it's a very. It's also a very intensely fact dependent and context dependent analysis. The mass tort case. We are dealing with victims of a a tortious act from very very small claims might be regarded as being different a very different category two to group members made up largely of institutional clients in respect of a shareholder class action. So I suppose it's a long way of saying who knows.


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