Kilah v Medibank Private Limited - [2024] VSC 152

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

GROUP PROCEEDINGS LIST

S ECI 2023 01227

ROBERT LAIRD KILAH	First Plaintiff
BRENDAN FRANCIS SINNAMON	Second Plaintiff
v
MEDIBANK PRIVATE LIMITED (ACN 080 890 259)	Defendant

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JUDGE:	Attiwill J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 February 2024
DATE OF RULING:	7 February 2024 (oral reasons); 28 March 2024 (written reasons)
CASE MAY BE CITED AS:	Kilah & Anor v Medibank Private Limited
MEDIUM NEUTRAL CITATION:	[2024] VSC 152

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GROUP PROCEEDINGS — Costs — Application for a group costs order —Costs to be calculated as a percentage of the amount of any award or settlement recovered — Whether a contradictor should be appointed — No contradictor appointed — Whether the Court should make the group costs order — Exercise of discretion — Principles to be applied — Supreme Court Act 1986 (Vic) s 33ZDA – Gehrke v Noumi Ltd [2022] VSC 672, DA Lynch v Star Entertainment Group; Drake v Star Entertainment Group; Huang v Star Entertainment Group; Jowene v Star Entertainment Group [2023] VSC 561, Thomas v The a2 Milk Company Ltd [2023] VSC 768 applied — Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr A Hochroth with Mr H C Whitwell	Phi Finney McDonald Quinn Emanuel Urquhart & Sullivan
For the Defendant	Mr N P De Young KC with Ms J A Findlay	King & Wood Mallesons

HIS HONOUR:

INTRODUCTION

This is a group proceeding brought under Part 4A of the Supreme Court Act 1986 (Vic) (the Act) by persons who allege they acquired an interest in shares in Medibank Private Limited (Medibank) between 1 July 2019 to 25 October 2022 (inclusive) and suffered loss or damage as a result of Medibank’s conduct.

The plaintiffs seek a group costs order under s 33ZDA of the Act for legal costs payable to the solicitors representing the plaintiffs and group members, Quinn Emanuel Urquhart and Sullivan LLP (Quinn Emanuel) and Phi Finney McDonald Pty Ltd (PFM), to be calculated at 27.5% of any award or settlement that may be recovered in the proceeding, with the payment to be shared equally between the two firms. The plaintiffs also seek an order that they and the group members are liable to pay the legal costs payable to the plaintiffs’ solicitors. Medibank did not oppose the application. Medibank did, however, identify certain matters upon which the Court may wish to hear from a contradictor.

STATUS OF THE PROCEEDING

On 28 March 2023, Mr Kilah commenced a group proceeding against Medibank (the Kilah proceeding). The solicitors representing Mr Kilah were Quinn Emanuel. On 29 June 2023, Dr Sinnamon commenced a group proceeding against Medibank concerning substantially similar issues (the Sinnamon proceeding). The solicitors representing Dr Sinnamon were PFM. On 6 September 2023, the Court ordered the Kilah proceeding and the Sinnamon proceeding be consolidated. Mr Kilah and Dr Sinnamon became the joint representative plaintiffs. Quinn Emanuel and…

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] VSC 152
Decision Date: 7 February 2024 (oral reasons); 28 March 2024 (written reasons)

CaseChat Overview and Summary

In the matter of Kilah v Medibank Private Limited, the Court addressed an application for a group costs order within the context of a class action proceeding. The class action was initiated by the plaintiff against the defendant, Medibank Private Limited, on behalf of a group of individuals who were allegedly overcharged for health insurance. The plaintiff sought a group costs order under the Supreme Court Act 1986 (Vic), requesting that costs be calculated as a percentage of any award or settlement recovered and arguing against the appointment of a contradictor to the order.

The legal issues before the Court encompassed whether the Court should exercise its discretion to make the group costs order, particularly considering the appropriate principles and authorities that should guide such a decision. The Court needed to determine whether the absence of a contradictor, a party appointed to contest the application for a group costs order, should influence its decision, and how the principles established in previous cases should be applied in this instance.

The Court deliberated on the matter, taking into account the authorities of Gehrke v Noumi Ltd, DA Lynch v Star Entertainment Group, Drake v Star Entertainment Group, Huang v Star Entertainment Group, Jowene v Star Entertainment Group, and Thomas v The a2 Milk Company Ltd. The Court concluded that the absence of a contradictor did not preclude it from making the group costs order. The Court exercised its discretion in accordance with the established principles, ultimately granting the application. The Court was satisfied that the order was in the interests of justice and appropriate given the circumstances of the case.

The Court made a group costs order as applied for by the plaintiff, determining that costs should be calculated as a percentage of any award or settlement recovered by the class. The Court did not appoint a contradictor to the order, finding that it was not necessary for the proper exercise of its discretion in this instance.

Orders