Greentree v Jaguar Land Rover Australia Pty Ltd (Carriage Application)

Greentree v Jaguar Land Rover Australia Pty Ltd involved two funded class actions brought against Jaguar Land Rover Australia Pty Ltd, concerning alleged defects in diesel particulate filter systems in motor vehicles sold to Australian consumers. The court was required to decide whether to permanently stay one of the proceedings to prevent duplicative and costly litigation. The legal issues included the appropriate approach to resolving multiplicity of proceedings in class actions, the factors to consider in determining whether to stay one of the proceedings, and the implications of the competing funding proposals.

The court applied a multi-factorial approach to determine whether to stay one of the proceedings. It considered factors such as the number of proceedings, the experience of solicitors, the funding models, and the cost implications. The experience of the solicitors in conducting analogous claims was the most compelling factor. However, since one of the proceedings was funded, the court found that the issue of cost was neutral. The court deferred the decision on common fund orders pending the judgment in Elliott-Carde v McDonald’s Australia Limited.

The court decided that it was contrary to the administration of justice for substantially duplicative, open class proceedings to continue without sound justification. Therefore, the court granted the application to stay one of the proceedings permanently, subject to the applicants providing an undertaking to match the costs regime of the other proceeding. If the undertaking was not provided, the court would declass and temporarily stay the proceeding pending mediation and further stays if necessary. The court appreciated the care and thought that went into the funding models in both proceedings and acknowledged the benefits of competitive class actions.

The court made orders to facilitate the course it had outlined. It granted leave to the applicants in the Greentree proceeding to intervene in the Jennings proceeding, required an undertaking to be provided within 28 days, and set out the consequences if the undertaking was not provided or accepted. The court reserved costs and allowed for immediate relisting upon delivery of the proposed undertaking.