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The Decision of Justice Logan, approving the Richards v Macquarie Class Action Settlement Scheme, is a blow to Third Party Litigation Funders and ASIC

The hearing lasted all day in the Federal Court of Australia at Brisbane, on Thursday, 2 May 2013, before His Hon. Justice Logan. The strange bedfellows, John Sheahan SC for Macquarie Bank Limited and Douglas Campbell SC, for the Lead Applicant, Tracey Richards (and the group members in the Levitt Robinson Class Action against Macquarie), joined forces to gain approval for the Settlement Distribution Scheme on which they resolved, following their agreement to settle the case on 15 March 2013.

ASIC opposed aspects of the settlement and in particular, the payment of “a Funders’ Premium” to the 315 clients of Levitt Robinson who contributed their blood, toil, tears and sweat and risked their last dime to take on Macquarie and to seek justice through the legal system, including for their seven hundred – odd “brothers” (and sisters) who did not “spare a dime” for the cause, although they too, stood to benefit.

The settlement was negotiated at around the time of the making of closing submissions, so the trial ran virtually full distance during the latter part of 2012, before His Hon. Justice Reeves, before there was a deal.

ASIC argued that it was fine for third party litigation funders – who are in reality, usurers – the kind of speculators, whom Jesus would have swept out of the Temple – to take a very big slice of the compensation cake. Yet ASIC seems to want to discourage direct action by the Plaintiff victims themselves, with the Regulator seeking to disincentivise consumer victims from taking responsibility and control over their own cases and, in the process, gain tangible recognition for doing so.

The principal difference between the Class Action settlement approval hearing in Richards v Macquarie Bank and most, is that this time, the argument centred around how much the group members who had paid for the litigation should be acknowledged through a “Funders’ Premium” or “uplift” rather than how much a third party money lender should stand to receive.

ASIC’s record is consistent: It puts the money lenders first.

Why? ASIC wants a hand in every case and a seat at every negotiating table and to be able to shut down the cases it does not want to proceed.

If there is a third party litigation funder, it only has to deal with and satisfy short term profiteers, for whom profit-taking, not justice, is the aim – and for whom litigation is the game. That is the kind of game which it is much easier for ASIC to control.

The last thing that ASIC and litigation funding speculators want, is for victims to take control of their own futures and to be represented by independent lawyers, who take instructions from their clients, with the primary aim of independently and vigorously agitating and vindicating consumer rights, in the face of the very entrenched interests, which ASIC appears determined, at least tacitly, to protect.

To help you understand where ASIC stands in the scheme of things, I attach a copy of a letter from the Assistant Treasurer Minister for Financial Services and Superannuation, the Hon. Bill Shorten, addressed to me dated 30 August 2011 and a copy of my letter to the Hon. Wayne Swan MP, Deputy Prime Minister and Treasurer of 3 May 2011, to which Bill Shorten was replying:

 

This is a great precedent which we can only hope will be followed, if we settle the CBA, Bank of Queensland and Westpac Class Actions and ultimately, too, should we achieve a settlement in the action which we plan to take against ASIC itself.

As an aside, at the end of the hearing on 2 May 2013, I approached John Sheahan SC, Counsel for Macquarie Bank and asked him if he would be prepared to accept a brief in the contemplated case against ASIC, since I am aware that his “side” separately looked at the matter of ASIC’s complicity themselves.

His response: “I must say that offer has some appeal.”

Perhaps I will be able to assemble a Cabinet of Rivals”, for the campaign ahead.

Congratulations to all of you who stood with us.

 

With Compliments,

STEWART A LEVITT