Allen v G8 Education Ltd - [2021] VSC 173

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

GROUP PROCEEDINGS LIST

S ECI 2020 04339

PAUL ALLEN	Plaintiff
v
G8 EDUCATION LIMITED (ACN 115 832 963)	Defendant

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JUDGE:	NICHOLS J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	9 April 2021
CASE MAY BE CITED AS:	Allen v G8 Education Ltd
MEDIUM NEUTRAL CITATION:	[2021] VSC 173

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PRACTICE AND PROCEDURE – Practice Notes – Practice Note SC Gen 10 Conduct of Group Proceedings (Class Actions) – Disclosure of litigation funding agreements – Redaction on the basis of confidentiality – Redaction not premised on privilege or other substantive right – Conferral of a tactical advantage.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	F Forsyth QC DJ Fahey	Slater and Gordon
For the Defendant	RG Craig QC with JA Findlay and HC Whitwell	MinterEllison

HER HONOUR:

In this Group Proceeding the plaintiff’s solicitors have provided to the defendant’s solicitors a copy of the conditional costs agreement between themselves and the plaintiff, as required by Clause 13.2 of Practice Note SC Gen 10 – Conduct of Group Proceedings (Class Actions) (the Practice Note).[1] The plaintiff has redacted certain parts of the document provided to the defendant. The plaintiff’s redaction of one paragraph (Clause 13) is in dispute. The plaintiff says that Clause 13 would reveal the extent to which the plaintiff has access to an indemnity for costs orders made against it. I have inspected an un-redacted copy of the costs agreement provided to my chambers. I accept that characterisation.
[1]Reissued 12 October 2020.

The Practice Note relevantly provides as follows (emphasis added):

13.Disclosure of costs agreements and litigation funding agreements to the Court and other parties
13.1Any costs agreement applicable to a group proceeding and any Litigation Funding Agreement must be in writing.
13.2The plaintiff’s solicitor is required to disclose to the Court and to the other parties to the proceeding, copies of the costs agreement between the plaintiff and their solicitor, and any Litigation Funding Agreement. They must do so prior to the initial CMC, and must provide copies of any updated costs or funding agreements as those agreements change. Disclosure to the Court is made by email to the chambers of the Case Management Judge.
13.3Where the plaintiff’s solicitor considers that the disclosure of a costs agreement or a Litigation Funding Agreement to the other parties may give rise to material prejudice or is inconsistent with the maintenance of client legal privilege, they may propose a sensible redaction process or object to making the required disclosure. Any proposed objection or redaction process should be raised with the court and other parties, so that the matter may be determined by the Court. …
13.7No later than seven clear business days prior to the initial CMC the plaintiff’s solicitor must serve a copy of the costs agreement and any Litigation Funding Agreement on all other parties. The disclosure may be redacted to conceal any information that might…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Allen v G8 Education Ltd

Details

AGLC: Allen v G8 Education Ltd [2021] VSC 173
Case: [2021] VSC 173
Decision Date: 9 April 2021

CaseChat Overview and Summary

In the matter of Allen v G8 Education Ltd, the court was tasked with determining the appropriate extent of redaction to be applied to disclosure documents in a class action proceeding. The plaintiff, Allen, was the proposed lead plaintiff in a class action brought against G8 Education Ltd. The dispute centred on the disclosure of litigation funding agreements, with Allen contending that such agreements should be disclosed in full, while G8 Education Ltd argued for substantial redaction on the basis of confidentiality.

The legal issues before the court were whether the redaction of the litigation funding agreements was justified under the Practice Note SC Gen 10 Conduct of Group Proceedings (Class Actions), and if the redaction was premised on confidentiality, whether such a basis conferred a tactical advantage on the defendant. The court had to assess whether the redaction of the funding agreements was necessary to protect confidential information and whether such redaction unfairly disadvantaged the plaintiff by obscuring critical information pertinent to the merits of the case.

The court determined that the redaction was not premised on a substantive right such as privilege, but rather on a tactical consideration to obscure certain details from the plaintiffs. The court held that such a redaction strategy could confer an unfair tactical advantage on the defendant, which was impermissible under the Practice Note. Consequently, the court ruled that the funding agreements should be disclosed in full, with only necessary redactions made to protect truly confidential information. This decision underscored the importance of transparency in class actions and the need to balance confidentiality concerns with the rights of the class members.

The court's final orders mandated that the litigation funding agreements be disclosed in full, with limited redactions permissible only to protect genuinely confidential information. The court emphasised the need for such disclosures to ensure that all parties have the information necessary to fairly litigate the matter, thereby upholding the principles of fairness and transparency in class action proceedings.

Orders