LEVITT ROBINSON CLASS ACTION LITIGATION – A CONTINUING STORY OF ACHIEVEMENT

 

THE STORM FINANCIAL CLASS ACTIONS

Between 2010 and 2015, Levitt Robinson (LR) started and ran Class Action claims (self-funded by the litigants themselves) against CBA, Macquarie Bank, Bank of Queensland and Westpac. These cases arose from the Banks’ role in funding a risky scheme, where borrowers’ properties were mortgaged to fund investments which were vulnerable to margin calls. At the onset of the GFC, margin calls were made and Storm borrowers lost hundreds of millions of dollars.

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LR moved CBA into improving its Resolution Scheme Offer to Class Action members through an ASIC – CBA joint offer made mid-proceedings, to Class Members who would opt-out, by roughly $100m and settled the Class Action claim against CBA for $43 million.

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LR settled the claim against Macquarie Bank for $82.5m, against Bank of Queensland for $22m (just around 100 Group Members) and Westpac (87 opt-in group members) for $10m. LR also negotiated roughly another $100m for participants in ANZ, NAB and CBA Resolution Schemes for their Storm Financial losses, of investments funded by those Banks.

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LR’S FIRST HUMAN RIGHTS CASE

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Wotton v the State of Queensland

LR “spec-ed” a representative action against the State of Queensland and the Queensland Commissioner of Police known as Wotton v State of Queensland (No. 5) [2016] FCA 1457, resulting in a verdict in favour of the lead applicants for $418k (inclusive of pre-judgment interest) plus costs, in late 2016, plus a $30m settlement for 447 group members, negotiated the following year, approved by the Court in 2018. The case arose out of the treatment of indigenous Palm Islanders under a State of Emergency proclaimed by Police in November 2004.

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The Queensland Government issued an apology to Palm Islanders for the violence and discrimination to which they were subjected by police in the aftermath of the riots on the island in 2004: “The Queensland Government acknowledges that men, women and children who were assaulted, or otherwise treated illegally during this time suffered distress, humiliation and violence... As a government, we have learned from your significant pain and suffering, and have taken significant steps to ensure that none of our citizens will again suffer discrimination at the hands of their government.”

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OTHER SIGNIFICANT CLASS ACTIONS

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Searle v the Commonwealth Bank of Australia [2019] NSWCA 127

LR achieved a unanimous judgment in the NSW Supreme Court of Appeal in 2019, allowing an appeal by the Lead Applicant against a verdict for the defendant at first instance, before Justice Fagan.  This was a ground-breaking case because until then, it was assumed that members of the Australian Defence Force (ADF) could not enforce a contract against the military establishment.  

 

Approximately 300 group members were to receive approximately $87,000 each (estimated median award) plus costs - this litigation was funded by Galactic.

 

O’Dea v Westpac [2019] NSWSC 1078

A $10m settlement was achieved, to be paid by Westpac, for a self-funding Closed Class with LR’s costs and disbursements at $2m and $8m to group members.  The clients were victims of a Ponzi Scheme conducted by Famularo (deceased) – Westpac was alleged to have been knowingly involved.

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Davaria et Ors v 7-Eleven Stores Pty Ltd et Anor

This case was commenced in early 2018 and a settlement was negotiated in mid-2021 for $98m, the first class action “win” against 7-Eleven anywhere in the world.  There was a protracted settlement approval process, with Jonathan Redwood SC appointed as Contradictor.  There was controversy over whether or not a Common Fund Order (CFO) was available to the Funder.  This was a case funded by Galactic. 

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A decision was handed down by the settlement approval judge on 14th February 2023 in Davaria Pty Ltd v 7-Eleven Stores Pty Ltd (No. 13) [2023] FCA 84 by His Honour Justice O’Callaghan.  Galactic was represented by Stephen Finch QC, instructed by Madison Marcus, Solicitors, while the Applicants were represented by Levitt Robinson Solicitors.

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At paragraph 158 of Justice O’Callaghan judgment, His Honour stated: "Fourthly, in my view, the legal costs were not disproportionate to the nature of the context, the litigation involved or the benefit of it. The proceedings were extremely complex and hard-fought; the value of group members’ claims was potentially very substantial; and the fact that significant legal fees were incurred is unsurprising. As the Applicants submitted: There is…a significant parity between the Applicants’ costs…and 7-Eleven’s costs… The parity of costs incurred by the parties provides a firm indicator that the Applicants’ legal costs and disbursements were proportionate.”

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Jack v Corestaff NT Pty Ltd [2022] FCA 1005

This was a small Class Action (only 32 Funded Group Members and fewer than 100 in the Class), resolved by LR in 2022. The class action was funded by Omni Bridgeway. On 26th August, 2022, the settlement of $6.4m, and LR’s legal costs (without the appointment of a cost referee), were approved by Justice Bromwich in the Federal Court at Sydney. Stewart Levitt of LR was appointed Fund Administrator.

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Luke & Anor v Aveo Group

This class action was settled for $11m, to be paid by Aveo in March 2023 but the settlement approval only occurred in December 2023. The matter, which required the valuation of units in retirement villages, was complicated by the fact that Aveo periodically changed its contract model during the life of the proceedings and also, by the 20 (twenty) month-longs COVID 19 lockdowns, which obstructed access by real estate valuers to retirement villages across Eastern Australia, where the Aveo villages were mostly located. Most expert valuers contacted by LR were reluctant to give evidence against AVEO, which dominated the retirement village market – or were otherwise conflicted.

 

The WA valuer whom LR had initially engaged, pre-Covid, was unable to perform his contract because of the COVID crackdown on freedom of movement between the States.

 

Kyle-Sailor v Nine Entertainment Co. Holdings Ltd et al (Channel 9)

This involved a claim against Channel 9 over two (2) broadcasts which it was claimed, offended against Section 18C of the Racial Discrimination Act 1975 (C’th), causing hurt and offence to those Palm Islanders who had received compensation pursuant to the previous successful class action litigation, styled Wotton v State of Queensland [5] (No. 5) [2016] FCA 1457 which had been the first case of a community successfully alleging discrimination against the State.

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LR successfully resisted, with costs, a High Court challenge by Channel 9, seeking to stay the Federal Class action. This involved an abortive Constitutional challenge to the validity of section 18C in the High Court, heard on 18 November 2022. 

 

Channel 9 has agreed “without admission” to settle the class action with the settlement sum to remain confidential except from group members. Channel 9 has also agreed to publish an apology and correction, once the settlement is approved.

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FUNDS ADMINISTRATION

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Stewart Levitt, Senior Partner of Levitt Robinson Solicitors, has repeatedly been appointed by the Federal Court to be Administrator of Class Action Settlement Funds or to act as Co-Administrator, or alternatively, to be the solicitor assisting the Fund Administrator, in class actions where LR acted for the Applicants.

 

ANOTHER LEGAL MILESTONE

On 11 October 2023, in Official Trustee in Bankruptcy v Kent [2023] FCA 1211, his Honour, Acting Chief Justice Rares, decided a landmark case, brought by LR “on spec” which held that a compensation claim made to the Australian Financial Complaints Authority (AFCA) by a former bankrupt (Mr Kent), is not property of the bankrupt which vests in the trustee under the Bankruptcy Act.

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On 13 November 2023, in Official Receiver in Bankruptcy v Kent (No. 2) [2023] FCA 1396, Acting Chief Justice Rares ordered that the Official Trustee in Bankruptcy should pay the respondent, Richard Kent’s costs, on the indemnity basis.

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On 21 December 2023, the Official Trustee in Bankruptcy announced on its website that “The Official Trustee has carefully reviewed His Honour’s recent decision and decided not to appeal the decision in the Full Court of the Federal Court.”

 

FAMILY LAW – BAPTISM OF FIRE

The case of Norbis v Norbis (1986) 161 CLR 513 was decided in the High Court in the mid-eighties and turned on its head, the way in which matrimonial property was treated. This was Stewart Levitt’s first foray into the High Court and LR - or as the firm was then known – acted for the Respondent who had won 4: Nil in the Full Court of the Family Court.

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Up till then, Courts had been meticulous in determining who had brought what into the marriage and weighing up financial contributions during the marriage, too, and ascribing them to one spouse or the other. There was a an "asset-by-asset" assessment undertaken, as if what was being dissolved was a commercial partnership, not a love match.

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The High Court decided in Norbis that, henceforth, the proper approach would be to look at financial contributions in a global or wholistic way, particularly when considering money coming into the household during the marriage.

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Because what was being determined was considered to be a matter of high public importance, LR’s client was awarded costs from the Commonwealth Suitors’ Fund, even though the Full Court decision was reversed.

LR had acquired a taste for being involved in transformational litigation, which it is yet to lose.