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Kajula Pty Ltd v Downer EDI Ltd

Kajula Pty Ltd v Downer EDI Ltd

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Case Copied 15 October 2024 66 min read

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0121

KAJULA PTY LTD (ACN 065 474 713)	Applicant
v
DOWNER EDI LIMITED (ACN 003 872 848)	First Respondent
JUSTINE LIDGETT	Second Respondent
CAMERON LIDGETT	Third Respondent

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JUDGES:	MACAULAY, LYONS and ORR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	8 May 2024
DATE OF JUDGMENT:	15 October 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 236
JUDGMENT APPEALED FROM:	[2023] VSC 574 (Delany J)

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PRACTICE AND PROCEDURE – Group proceedings – Four group proceedings – Three proceedings consolidated – Multiplicity dispute between consolidated proceeding and other group proceeding – Judge awarded carriage to consolidated proceeding and stayed other proceeding – Whether judge entitled to take into account cooperation of legal advisers leading to formation of consolidated proceeding – Whether by taking into account and/or giving prominence to cooperation judge failed to have regard to role of competition – Judge entitled to take into account cooperative behaviour and competitive behaviour in process leading to determination of multiplicity dispute – Whether judge failed to take into account or give appropriate weight to other factors – Whether in light of particular findings judge should have concluded that best interests of group members were served by awarding carriage to consolidated proceeding – No real prospect of success – Leave refused.

APPEALS – Exercise of power under s 33ZF of Supreme Court Act 1986 – Applicable standard of appellate review – Whether judge’s decision discretionary – House v The King (1936) 55 CLR 499 standard applied – Application for leave related to matter of practice and procedure – No substantial injustice established – Leave refused.

Supreme Court Act 1986, s 33ZF; Civil Procedure Act 2010, ss 7, 8, 9.

House v The King (1936) 55 CLR 499, applied; GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; Wigmans v AMP Ltd (2021) 270 CLR 623; Perera v GetSwift Ltd (2018) 263 FCR 92; Fei v Hexin Pty Ltd [2024] VSCA 158; Southernwood v Brambles Ltd (2019) 137 ACSR 540; Fuller v Allianz Australia Insurance Ltd (2021) 65 VR 78; Stallard v Treasury Wine Estates Ltd [2020] VSC 679, discussed.

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Counsel
Applicant:		Mr C Withers SC with Ms R Zambelli and Ms S Scott
Second and Third Respondent:		Ms R Doyle SC with Mr D Fahey and Mr DV Murphy
Solicitors
Applicant:	Quinn Emanuel Urquhart & Sullivan
Second and Third Respondent:	Maurice Blackburn

MACAULAY JA
LYONS JA
ORR JA:

Introduction and summary

This application concerns a multiplicity or carriage dispute about which of two open group proceedings should have the ability to pursue a securities class action against Downer EDI Ltd (‘Downer’). By reasons delivered on 27 September 2023 and orders made on 6 October 2023, a judge of the Trial Division granted leave for a consolidated group proceeding (the ‘consolidated proceeding’) to progress to trial and permanently stayed a competing group proceeding in which Kajula Pty…

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.

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Details

Case: [2024] VSCA 236
Decision Date: 15 October 2024

CaseChat Overview and Summary

Kajula Pty Ltd, along with other plaintiffs, filed four group proceedings against Downer EDI Ltd. The primary dispute involved the multiplicity of proceedings and whether the proceedings should be consolidated. The case was heard in the Supreme Court of Victoria. The key legal issues revolved around whether the judge was entitled to consider the cooperation of legal advisers in determining which proceeding should be granted carriage and whether the judge adequately weighed the competitive aspects of the proceedings. The court also considered the applicable standard of appellate review and whether a substantial injustice was established to warrant leave to appeal.

The Supreme Court determined that the judge was entitled to consider the cooperative behaviour of the legal advisers in the formation of the consolidated proceeding, as well as the competitive behaviour, in resolving the multiplicity dispute. The court held that the judge's decision was not discretionary and that the House v The King standard was applicable. The court concluded that the judge did not fail to consider or appropriately weigh other factors, and that there was no substantial injustice in the judge's determination to award carriage to the consolidated proceeding. Consequently, the appeal for leave was refused.

The reasoning of the court was that the judge's decision was based on a comprehensive consideration of the cooperative and competitive factors, which were relevant to determining the multiplicity dispute. The court found that the judge had not failed to take into account or give appropriate weight to other factors, and that the best interests of the group members were served by awarding carriage to the consolidated proceeding. The court further noted that the applicant had no real prospect of success in their appeal and that no substantial injustice was established.

The final orders of the court were that the appeal for leave to appeal the decision was refused. The consolidated proceeding was to continue as the primary proceeding, and the other group proceedings were to be stayed pending the outcome of the consolidated proceeding. The court emphasised that the decision was made in accordance with the applicable legal standards and that there was no basis for granting leave to appeal.

Orders