Komlotex Pty Ltd v AMP Ltd

[2020] NSWSC 504

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Komlotex Pty Ltd v AMP Ltd [2020] NSWSC 504
Hearing dates:	30 April 2020
Date of orders:	08 May 2020
Decision date:	08 May 2020
Jurisdiction:	Equity
Before:	Ward CJ in Eq
Decision:	1.   Dismiss the Notice of Motion filed 21 April 2020 by Ms Wigmans. 2.   Reserve the question of costs.
Catchwords:	REPRESENTATIVE PROCEEDING – CIVIL PROCEDURE – multiplicity of proceedings – whether representative proceeding ought to be effectively stayed pending appeal from decision staying duplicative proceeding   CIVIL PROCEDURE — Stay of proceedings — where orders sought an effective stay pending appeal
Legislation Cited:	Civil Procedure Act, ss 56, 58, 61(1), 157, 159, 162, 163, 173, 177, 179, 182, 183, Pt 10 Federal Court Act 1976 (Cth), ss 33V, 33ZB Federal Court of Australia Act 1976 (Cth), s 50 High Court Rules 2004, r 42.09 Supreme Court Act 1986 (Vic), Pt 4A Uniform Civil Procedure Rules 2005 (NSW), r 2.1
Cases Cited:	Advanced Building Systems Pty Ltd v Ramset Fasteners (Aust) Pty Ltd [1997] HCA 24; (1997) 71 ALJR 814 Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 Australian Broadcasting Commission v Parish [1980] FCA 33; (1980) 43 FLR 129 BMW Australia Ltd v Brewster [2019] HCA 45; (2019) 374 ALR 627 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25 Courtney v Medtel Pty Ltd [2001] FCA 1037 Federal Commissioner of Taxation v Myer Emporium Ltd (1986) 160 CLR 220; [1986] HCA 13 Gerah Imports Pty Ltd v The Duke Group (in Liq) [1994] HCA 3; (1994) 68 ALJR 196 Haselhurst v Toyota Motor Corporation Ltd t/as Toyota Australia [2020] NSWCA 66 Inabu Pty Ltd v CIMIC Group Ltd [2020] FCA 510 Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681; [1986] HCA 84 Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 56; (1999) ATPR 41-679 Jones v Treasury Wine Estates [2017] FCA 296 Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383 King v GIO Australia Holdings Ltd [2001] FCA 270 Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd (2017) 252 FCR 1; [2017] FCAFC 98 Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1; [2002] HCA 27 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [No 2] [1998] HCA 32; (1998) 72 ALJR 869 Perera v GetSwift Ltd (2018) 263 FCR 1; [2018] FCA 732 Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia (No 4) [2010] FCA 749 Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 Rinehart v Welker (2012) 83 NSWLR 347; [2012] NSWCA 1 Rodger v Comptoir d’Escompte de Paris (1871) 3 LR PC 465 Smith v New South Wales Bar Association [1991] HCA 59; (1991) 66 ALJR 219 Temwork Holdings Pty Ltd v Western Australian Planning Commission [2004] WASCA 65; (2004) 132 LGERA 439 Wigmans v AMP Ltd [2019] NSWCA 243; (2019) 373 ALR 323 Wigmans v AMP Ltd [2019] NSWSC 603
Texts Cited:	V Morabito, “Class Actions Instituted Only for the Benefit of the Clients of the Class Representative’s Solicitors” (2007) 29 Sydney Law Review 5
Category:	Procedural and other rulings
Parties:	Komlotex Pty Ltd (First Plaintiff) Fernbook (Aust) Investments Pty Ltd (Second Plaintiff) AMP Limited (First Defendant) Marion Antoinette Wigmans (Applicant)
Representation:	Counsel: CA Moore SC with A d’Arville (Plaintiffs) EA Collins SC with IJM Ahmed (Defendant) A Hochroth (Applicant)   Solicitors: Maurice Blackburn Lawyers (Plaintiffs) Herbert Smith Freehills (Defendant) Quinn Emanuel Urquhart & Sullivan (Applicant)
File Number(s):	2018/00310118
Publication restriction:	Nil

Judgment

1. HER HONOUR: Before me for hearing on 30 April 2020 were two notices of motion, in effect seeking competing orders in relation to the steps (if any) to go forward in the present proceeding (the Komlotex proceeding), that being an open class representative proceeding against AMP Limited (AMP), pending the hearing and determination of an appeal to the High Court from an earlier decision to stay other proceedings (including the Wigmans proceeding) (to which I refer below).

2. The first of those two notices of motion (the Wigmans motion) was filed on 21 April 2020 by Ms Wigmans. Ms Wigmans is the lead plaintiff in a competing class action against AMP which has been permanently stayed (the Wigmans proceeding, see further below). Ms Wigmans is also, as emphasised by Senior Counsel for the plaintiffs in the Komlotex proceeding (Komlotex Pty Ltd and Fernbrook (Aust) Investments Pty Ltd, to whom I will refer as Komlotex and Fernbrook, respectively), someone falling within the definition of group member in the Komlotex proceeding and thus, perhaps ironically, a group member in whose interests the Komlotex proceeding is presently being conducted.

3. Relevantly, in her notice of motion, Ms Wigmans seeks an order, pursuant to ss 61(1) and/or s 183 of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act), r 2.1 of the Uniform Civil Procedure Rules 2005 (NSW) and/or the Court’s inherent jurisdiction, that certain of the orders made on 12 March 2020 and 9 April 2020 in the Komlotex proceeding (to which I refer in due course) now be vacated.

4. Counsel for Ms Wigmans emphasises that Ms Wigmans does not here seek a stay of the Komlotex proceeding; rather, she seeks the deferral of the taking of particular steps in the litigation (relevantly, the issue of opt out notices and the holding of a mediation) pending the determination of Ms Wigmans’ appeal to the High Court in relation to the permanent stay of the Wigmans proceeding.

5. The second of the competing notices of motion (the Komlotex motion) was filed on 27 April 2020 by Komlotex and Fernbrook seeking more extensive relief (in relation, inter alia, to registration of group member claims, the issue of opt out notices and the preparation of the matter for mediation – those being the very steps that Ms Wigmans says should not take place pending the High Court appeal).

Background

6. The background to the present application has been set out in various decisions both in this Court and in the Court of Appeal. It can be briefly stated as follows.

7. The Komlotex proceeding was commenced following the making of certain disclosures by AMP executives during evidence given on 16 and 17 April 2018 at the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry after which AMP’s share price fell sharply. Allegations are made in the Komlotex proceeding that AMP contravened its continuous disclosure obligations and statutory prohibitions on misleading or deceptive conduct by failing to disclose to the market that it had deliberately charged its customers fees for ongoing financial advice and related services where no such services were provided; and had misled the regulator, Australian Securities and Investments Commission, as to the nature and extent of that misconduct over an extended period. (I interpolate to note that very similar allegations were made in the Wigmans proceeding.)

8. At the time it was commenced, the Komlotex proceeding was only one of a number of competing sets of representative proceedings (some or all of which might well be said to have been commenced in an unseemly scramble either to obtain the so-called “first mover advantage”, to which reference has been made in other cases, or to jump onto the class action “bandwagon”, so to speak). Each of those competing representative proceedings arose out of substantially the same factual background and, to a large extent, brought the same or much the same claims for the same or much the same set of group members. Indeed, the contention of Ms Wigmans when the multiplicity or carriage motions to which I refer below were before me (as I understand was also her contention in the more recent High Court special leave application) was that each of the subsequent proceedings was “essentially duplicative” of her own (first commenced) proceeding.

9. The first of the competing representative proceedings (the Wigmans proceeding) was commenced in this Court. The following four sets of proceedings, in strict order of commencement (though it may be noted that in the case of the second set of proceedings this was only by a number of hours), to which I have elsewhere referred as the Wileypark, Georgiou, Fernbrook and Komlotex proceedings, were commenced in the Federal Court of Australia.

10. After a number of unedifying interlocutory skirmishes as to the forum in which any one or more of the respective proceedings should continue, a number of interlocutory applications (the multiplicity or carriage motions) brought in the respective proceedings were heard by me on 6 and 7 December 2018. For reasons published on 23 May 2019 (see Wigmans v AMP Ltd [2019] NSWSC 603 – the Stay Judgment), I ordered, inter alia, that the Komlotex and Fernbrook proceedings be consolidated (into what I am here referring to as the Komlotex proceeding) and I permanently stayed the remaining sets of proceedings, including the Wigmans proceeding. In simple terms, I allowed the Komlotex proceeding to go ahead and I permanently stayed the Wigmans proceeding. In so doing, I had concluded that the continuation of more than one of the competing representative proceedings would be inimical to the facilitation of the just, quick and cheap resolution of the real issues in these proceedings and would, adapting the words of Lee J in Perera v GetSwift Ltd (2018) 263 FCR 1; [2018] FCA 732 (GetSwift) (at [309]), “involve an element of vexation to be occasioned to [AMP] when there is no justifiable reason why it should face [four] open class actions rather than one” (see at [347] of the Stay Judgment).

Special leave to appeal to the High Court of Australia

11. Since the stay of the other representative proceedings, I have continued to case manage the ongoing conduct of the Komlotex proceeding. The most recent orders, relevantly, in that proceeding were orders made on 12 March 2020 and 9 April 2020 in relation, inter alia, to the issue of opt out notices to group members (those orders being the subject of the present applications).

12. Meanwhile, however, Ms Wigmans, whose Counsel on the present applications emphasised her subjective wish to conduct her “own” class action “against AMP with the lawyers, the funder and the pleading of her choice”, in the context of emphasising Ms Wigmans’ relevant interest in the present High Court appeal (see T 64.43 and see also T 25), brought an application for leave to appeal from the permanent stay of her proceeding. That application was heard, concurrently with the appeal itself, in October 2019. The Court of Appeal (comprised by Bell P, Macfarlan, Meagher, Payne and White JJA) granted leave to appeal in respect of one ground of the draft notice of appeal, refused leave in respect of the remaining grounds of the draft notice of appeal, and dismissed the appeal (see Wigmans v AMP Ltd [2019] NSWCA 243; (2019) 373 ALR 323 (the Court of Appeal Decision)).

13. Ms Wigmans then sought, and on 17 April 2020 obtained, special leave to appeal to the High Court from the Court of Appeal Decision. The proposed grounds of appeal were framed by Ms Wigmans in her special leave application (a copy of which was exhibited to her solicitor’s affidavit on the present application) as follows:

1. The Court of Appeal erred in failing to find that Part 10 of the Civil Procedure Act 2005 (NSW) (CPA) did not authorise the approach taken by the primary judge to the determination of the cross-stay applications between the Applicant and the Second Respondent [Komlotex] concerning multiple, duplicative open class actions.

2.   The Court of Appeal erred in refusing to grant leave to appeal in respect of whether the primary judge erred by acting upon the assumption that the proceedings by each of the Applicant and the Second Respondent against the First Respondent [AMP] had an equal probability of achieving each possible settlement or judgment outcome within the range of possible outcomes, and should have found that in so doing the primary judge had erred.

14. On the present applications, I was taken to the transcript of the special leave application. It was emphasised by Counsel for Ms Wigmans that there was no limitation placed by the High Court (Nettle and Gordon JJ) on the grounds for which special leave to appeal was granted (see T 17; T 19).

15. The special leave questions, as posed in the application for special leave, were as follows:

1. Does Part 10 of the Civil Procedure Act 2005 (NSW) (CPA) authorise the filing of multiple, duplicative open class action proceedings as the premise for the Court thereafter conducting a hearing derived from United States/Canadian style “carriage” and “certification” motions, so as to determine which matter is likely to produce the largest settlement or judgment sum against the defendant and the highest net return for group members?

2.    If, contrary to the Applicant’s contention, such a process is authorised by Part 10 of the CPA, when a court is faced with competing, duplicative open class proceedings being conducted on the basis of differing funding models with differing incentives, disincentives and risk profiles, is it permissible for the Court simply to assume, without findings in the evidence, that each of the proceedings, if conducted by experienced legal representatives, has an equal probability of achieving each possible settlement or judgment outcome within the range of possible outcomes?

16. There was some debate on the present applications as to whether, in the course of the special leave argument, there had been a crystallisation or refinement of the issues the subject of the draft grounds of appeal but, as noted above, Counsel for Ms Wigmans made clear that there was no limiting of the special leave grounds so that, in his submission, “all [is] in play”. In particular, it was said (see T 17; T 19) that there had been no abandonment of Ms Wigmans’ vexation and oppression or abuse of process argument (the so-called vexation or oppression ground) on which it was contended that the Komlotex proceeding should have been stayed (the Wigmans proceeding being the first in time and the other proceedings having no relevant juridical advantage) but that, even on the ground relating to the factors that the Court could properly take into account (i.e., going to the multifactorial analysis which was the approach adopted in GetSwift and in which I had, over Ms Wigmans’ opposition, engaged), the Komlotex proceeding should still have been stayed. Ms Wigmans’ position is that the original decision (in the Stay Judgment) staying her proceeding was affected by an error of law and should not have been made (see T 18) and she maintains that Komlotex and Fernbrook are here seeking to take advantage of that putative error by progressing the Komlotex proceeding to the stage of the opt out process (and proposed mediation) (see T 20).

Orders made on 12 March 2020 and 9 April 2020

17. Relevantly, the orders made on 12 March 2020, which Ms Wigmans initially sought by motion wholly to have vacated, were:

3.   On or before 8 May 2020, the Defendant is to provide discovery of a second and final tranche of the documents described in Schedule A.

…

8. Pursuant to section 162 of the Civil Procedure Act 2005 (NSW) (the Act), 4:00pm (AEDT) on 5 June 2020 (the Class Deadline) be fixed as the date before which a Group Member (as defined in the Amended Commercial List Statement filed on 5 August 2019) may opt out of the proceeding.

…

11. Subject to order 13 below, pursuant to section 183 of the Act, any Group Member who wishes to participate in the distribution of any amount agreed in settlement of this proceeding must, by the Class Deadline, register their claim by:

a.   submitting a completed registration form in a form set out in the opt out and registration notice approved by the Court at the hearing referred to in order 10 above (Registration Form) through the ‘AMP Shareholder Class Action Claims Registration’ webpage established on the website of the plaintiffs’ solicitors; or

b.   completing a hard-copy Registration Form and returning it to the plaintiffs’ solicitors at Level 8, 179 North Quay Brisbane Qld 4000 (New Registered Members).

12.   In completing the Group Member Registration Form, and in order to register for the purpose of Order 11 above, each Group Member will be required to submit: 

a.   the Group Member’s name and address and/or email address;

b.   any relevant Holder Identification Number (HIN) or Security Reference Number (SRN), if available; 

c.   the number of AMP securities held by each Group Member immediately prior to the commencement of trade on 10 May 2012;

d.   for each acquisition: 

i.   transactional information consisting of the date of acquisition and quantity of securities acquired regarding AMP securities acquired from 10 May 2012 to 13 April 2018 (inclusive); and 

ii.   total amount paid (net of brokerage) in respect of the acquisition, if available;

e.   for each sale:

i.   transactional information consisting of the date of sale and quantity of securities sold regarding AMP securities sold from 10 May 2012 to 13 April 2018 (inclusive); and 

ii.   total amount received (net of brokerage) in respect of the acquisition, if available.

13.   A Group Member will be deemed to have complied with Order 11 above if, by the Class Deadline:

a.   that Group Member has retained Maurice Blackburn in writing to act for that group member in connection with this proceeding (Existing Registered Group Members); and 

b.   to the extent they have not already done so, that Group Member provides to Maurice Blackburn the same information as New Registered Group Members are required to submit pursuant to Order 12 above. 

14.   By 4:00pm AEDT on 17 July 2020, the Plaintiffs must deliver to the solicitors for the Defendant (in electronic form), a de-identified version of the information referred to in order 12 in respect of each of the Existing Registered Group Members and New Registered Group Members. 

15. Pursuant to section 183 of the Act, and subject to any further order of the Court, any Group Member who by the Class Deadline does not opt out and who is not a New Registered Group Member or Existing Registered Group Member:

a.   will remain a group member for all purposes of this proceeding, including for the purpose of being bound by any judgment in this proceeding and being entitled to participate in any award of damages by the Court if this proceeding does not settle at the first mediation scheduled in this matter, or within the period between the first day of that mediation and the first of the following to occur:

i.   the date that is 6 months after the first day of the mediation; or

ii.   the first day of the hearing on liability in these proceedings. 

b.   shall not, without leave of the Court, be permitted to seek any benefit pursuant to any Court approved settlement of this proceeding reached at the first mediation scheduled in this matter, or within the period between the first day of that mediation and the first of the following to occur:

i.   the date that is 6 months after the first day of the mediation; or 

ii.   the first day of the hearing on liability in these proceedings (Mediation Class Closure Order).

16.   If no in principle settlement of this proceeding is reached at the first mediation scheduled in this matter, or within the period between the first day of that mediation and the first of the following to occur (i) the date that is 6 months after the first day of the mediation, or (ii) the first day of the hearing on liability in these proceedings, and if the parties intend to conduct a further mediation and seek to extend the operation of the Mediation Class Closure Order, either party may approach the Court seeking such orders. At that point either party may propose such regime for notification of group members that the party considers reasonable and appropriate in the interests of group members, including by proposing that group members not be provided with further notification. 

Mediation

17.   Mediation in this matter is to be conducted no later than 9 October 2020. In the absence of agreement by the parties as to a mediator, the mediation shall be conducted by a person to be appointed by the Court.

18. Pausing here, Ms Wigmans now does not seek to set side order 3 (the discovery order); nor would she complain as to the taking of steps for the preparation of expert evidence in advance of the High Court’s determination of her appeal. Rather, her complaint is as to the making of orders in relation to the fixing of the Class Deadline and the orders in relation to claim registration and mediation (broadly speaking, as to the opt out process and mediation taking place in advance of the High Court’s determination of her appeal).

19. The orders made on 9 April 2020, relevantly, extended the time for the Class Deadline (to 7 July 2020) and the orders in relation to the opt out procedure; and made provision for the service of expert evidence. Those orders included:

Evidence and Opt Out Orders

1.   Order 5 made on 12 March 2020 be amended such that by 4.00pm on 11 August 2020 the Plaintiffs serve any material on quantum and materiality upon which it intends to rely at mediation on a without prejudice basis.

2.   Order 6 made on 12 March 2020 be amended such that by 4.00pm on 7 October 2020 the Defendant serve any material on quantum and materiality upon which it intends to rely at mediation on a without prejudice basis.

3.   Order 8 made on 12 March 2020 be amended such that 4.00pm (AEDT) on 7 July 2020 (Class Deadline) be fixed as the date on or before which a Group Member (as defined in the Amended Commercial List Statement) may opt out of the proceeding.

4.   Order 14 made on 12 March 2020 be amended such that, by 4.00pm (AEDT) on 11 August 2020, the Plaintiffs must deliver to the solicitors for the Defendant (in electronic form), a de-identified version of the information referred to in order 12 made on 12 March 2020.

5. Pursuant to s 176(1) of the Civil Procedure Act 2005 (NSW) (the Act), the form and content of the notice (Notice to Group Members) in Schedule A and the abridged notice (Abridged Notice) in Schedule B be approved.

6. Pursuant to s 183 of the Act, the notice set out in Schedule C to this Order that is a modification of Form 115 (Opt Out Notice) be approved for this proceeding for the purpose of r 58.2(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).

7.   Pursuant to s 176(2) of the Act, notice is to be given to group members by no later than 4pm on 28 April 2020 according to the following procedure:

(a)   the plaintiffs are to display the Notice to Group Members and Opt Out Notice on the plaintiffs’ solicitor’s website, continuously until the Class Deadline;

(b)   the plaintiffs are to deliver the Notice to Group Members and the Opt Out Notice to the contact email address where an email is available, or failing that, by ordinary mail, to each group member who is a client of the plaintiffs’ solicitors or whom they are otherwise aware;

(c)   the defendant is to cause the Notice to Group Members and the Opt Out Notice to be sent to each person or entity listed in the defendant’s share register as having purchased shares in the defendant between 10 May 2012 and 13 April 2018 inclusive, such notices to be sent by email where an email address is available, or failing that, by ordinary mail;

(d)   the plaintiffs are to cause an advertisement in the terms of the Abridged Notice (Schedule B) to be published in the legal notices or equivalent section in one week day edition of The Australian Financial Review.

8.   The defendant will provide to the plaintiffs an estimate of the disbursement costs of the defendant in complying with Order 7(c) above, and the costs shall be paid by the plaintiffs in the first instance but shall be costs in the cause.

9. Pursuant to s 162(2) of the Act and r 58.2(1) of the UCPR, any group member who wishes to opt out of this proceeding must, on or before the Class Deadline, deliver an Opt Out Notice to the Registry of the New South Wales Supreme Court.

10.   If, on or before the Class Deadline, the solicitors for any party receive a notice purporting to be an opt out notice referable to this proceeding, those solicitors are to file such notice in the Registry of the Supreme Court of New South Wales within 7 days of receiving it and the notice shall be treated as an Opt Out Notice received by the Court at the time when it was received by the solicitors.

11.   The solicitors for the plaintiffs and the defendant be granted leave to inspect the Court file and to copy any opt out notices filed by group members.

Claim Registration

12.   The form and content of the Registration Form referred to in order 11 of the order made on 12 March 2020, be approved in the form of Schedule D to these Orders.

13.   The Notice to Group Members, the Abridged Notice, the Opt Out Notice and the Registration Form approved pursuant to Orders 3, 4 and 10 above, may be amended by the plaintiffs before they are emailed, posted, displayed or published in order to correct any website or email address or telephone number or other non- substantive error.

Mediation

14.   Order 17 made on 12 March 2020 be amended such that mediation in this matter is to be conducted by no later than 20 November 2020.

…

20. Again, Ms Wigmans would now not complain as to the service of expert evidence, her position simply being, as I understand it, that this should not be part of a regime for mediation prior to the High Court appeal being determined. AMP, along with Komlotex and Fernbrook, for their part say that the orders for the provision of expert evidence are part of a “package” of orders agreed between them for the conduct of the proceedings and resist the suggestion that those be made in the absence of the balance of that “package”. As I explain below, AMP submits that the utility of orders for the provision of expert evidence is diminished if that takes place prior to completion of the opt out process.

21. Komlotex and Fernbrook, by their motion, now seek to have orders 11-17 made on 12 March 2020 and order 4 made on 9 April 2020 vacated (in light of recent developments) and AMP consents thereto. To that extent, there is no issue between Komlotex and Fernbrook on the one hand and Ms Wigmans on the other (or, for that matter, AMP).

22. However, what Komlotex and Fernbrook in effect seek is a variation of the registration and opt out regime that was previously ordered (without admission as to the challenge here raised by Ms Wigmans thereto) so as to avoid any doubt, in light of the intervening Court of Appeal decision in Haselhurst v Toyota Motor Corporation Ltd t/as Toyota Australia [2020] NSWCA 66 (Haselhurst) (as to which, see further below), as to whether there was power to make certain of the orders of 12 March 2020. Ms Wigmans opposes this.

Ms Wigmans’ submissions

23. Ms Wigmans maintains, as adverted to above, that on a proper application of principle the Komlotex proceeding ought to have been found to be an abuse of process. Her position is that, if successful in her appeal to the High Court, she will seek an order that the stay in respect of the Wigmans proceeding be lifted and that the Komlotex proceeding be stayed. In the alternative, if her appeal is successful, Ms Wigmans will seek orders for the stay in respect of the Wigmans proceeding to be lifted and for both proceedings (the Wigmans and Komlotex proceedings) then to be remitted to the Equity Division of this Court for determination of the cross-stay applications according to law. Ms Wigmans recognises that, in the event that the alternative form of relief is granted, it may be necessary for this Court again to undertake a multifactorial analysis of the kind previously conducted (albeit one not affected by the error of law that would have, on this hypothesis, been found to have been made) (see T 18-9), although she appears to contemplate that there might also be some scope for “negotiation” at that stage which might affect that course. Furthermore, Counsel for Ms Wigmans would not foreclose the possibility that an argument might in that event be made that both proceedings should run at the same time (see T 19.8) (a course that AMP would no doubt, consistent with its previous position, oppose).

24. Although Ms Wigmans emphasises that she is not here seeking a stay of the Komlotex proceeding, she accepts that the orders she seeks will cause some delay in the preparation of the matter for mediation and she accepts that the principles applicable when considering applications for a stay pending leave to appeal or an appeal (to which I refer in due course) are an instructive guide on her present application.

25. In essence, Ms Wigmans says that the making of opt out orders or orders for mediation in the Komlotex proceeding should be deferred because: her High Court appeal raises serious issues for determination by the High Court; there is a real risk of prejudice or damage if a stay (in the manner here sought) is not granted; the prejudice to other parties to the litigation does not outweigh this risk (in circumstances where what is not sought is a complete stay of the Komlotex proceeding); and she has not delayed in seeking this relief.

26. It is noted that what must here be balanced is the risk of prejudice to Ms Wigmans (and third party interests, namely group members in her proceeding) if the orders sought by Komlotex and Fernbrook are made, and Ms Wigmans is ultimately successful in the High Court appeal, against the risk of prejudice to the parties and relevant interests in the Komlotex proceeding if the making of the orders here sought by Komlotex and Fernbook is deferred, and Ms Wigmans is unsuccessful in the High Court appeal.

27. As to the former prejudice (if the opt out, registration and mediation orders are made and Ms Wigmans is successful on the appeal), this is identified as being threefold: the impact that the orders would have on the High Court’s processes and the exercise of Ms Wigmans’ appeal rights; potential confusion for group members (which it is said, in itself or in conjunction with these other matters, has the capacity to bring the administration of justice into disrepute); and wasted cost and expense (see at T 15).

28. Ms Wigmans contends that there is a risk that the administration of justice will be brought into disrepute if group members are “told to opt out and register for a mediation taking place in December 2020, only to be later told that their previous opt out or registration was legally ineffective, as was any mediation”.

29. In terms of that prejudice that may be suffered by Komlotex and Fernbrook if the orders sought by Komlotex and Fernbrook are not now made, it is submitted by Ms Wigmans that the purported benefit to group members by the making of the orders is limited. It is said that, at best, the orders might result in a settlement with AMP “some months” earlier than might otherwise be the case (on the assumption that Ms Wigmans does not ultimately succeed in the High Court). It is submitted that the potential detriment (in terms of wasted cost, confusion and the potential subversion of the High Court appeal) far outweighs that benefit.

30. Further, Ms Wigmans argues that the proposed orders are beyond power in that they impermissibly invite group members to register to participate in any settlement of the Komlotex proceeding against the in terrorem threat of later being shut out of the settlement; or, at the least, that the proposed orders are inconsistent with the legislative scheme provided for in relation to representative proceedings and therefore ought not be made (relying upon Haselhurst). Although, initially, this submission was coupled with the complaint as to group members having their rights against AMP extinguished if they do not register, the proposed variation of the orders now put forward by Komlotex and Fernbrook, albeit without admission that the initial orders were without power, removes the foundation for that particular complaint.

31. Ms Wigmans says that she recognises the potential prejudice to group members (in the event that the High Court appeal is ultimately dismissed), if no further steps were to be taken in the Komlotex proceeding pending the High Court appeal and, therefore, she (now) does not say that no steps at all should be taken in the Komlotex proceeding pending the decision of the High Court. However, she submits that such steps as are taken should not unduly interfere with the High Court proceedings or have the potential to prejudice group members in the event that the appeal succeeds. In this regard, as already noted, Ms Wigmans now does not resist the making of orders in relation to discovery (nor would she resist orders as to the provision of expert evidence – as contemplated by the proposed orders she has herself put forward in this regime) (see T 12) but (as noted above) she maintains her opposition to orders in relation to opt out notices, registration and mediation of the dispute.

32. It is noted by Ms Wigmans that the directions made by the High Court on 17 April 2020 with respect to the appeal provide for all pre-hearing steps to be completed by 7 August 2020. Ms Wigmans’ solicitor, Mr Damian Scattini, has estimated that the appeal will be heard in September, October or November 2020 (although he says that in light of the current COVID-19 pandemic there is some uncertainty as to timing).

33. Ms Wigmans notes that her appeal to the Court of Appeal (as was her application for special leave to the High Court) was formally constituted as an appeal from the orders made in the Wigmans proceeding, rather than those made in the Komlotex proceeding, but argues that that procedural matter should not assume any significance (nor have the opposing parties here suggested otherwise). As noted above, ultimately, Ms Wigmans will seek an order, if the appeal is allowed, staying the Komlotex proceeding. Thus it is argued that, as a matter of substance over form, the matter should be approached as if there was on foot a High Court appeal against the decision to refuse to stay the Komlotex proceeding. As no procedural point is here taken by the parties, nothing turns on this.

First identified prejudice – that exercise of appeal rights or appeal process would be rendered nugatory

34. Ms Wigmans’ submission (that it is not appropriate for this Court to “sanction” a process designed to move the Komlotex proceeding to a mediation by 11 December 2020, a time at which the High Court appeal “may not even have been heard, let alone determined”) is made for the following reasons. Ms Wigmans invokes in this context the approach of the Western Australian Court of Appeal in Temwork Holdings Pty Ltd v Western Australian Planning Commission [2004] WASCA 65; (2004) 132 LGERA 439 (Temwork) (a decision to which I will come in due course).

35. Ms Wigmans argues, first, that the orders have the significant potential to render nugatory, or at least significantly to interfere with, Ms Wigmans’ appeal to the High Court. In that appeal, Ms Wigmans says she will contend, first, that the Court does not have a protective jurisdiction to stay a first filed action in favour of a second filed duplicative action on the basis of a forward looking prediction that the second filed duplicative action might yield a higher return for group members (on a gross or net basis); second, that a second or later duplicative action should be regarded as prima facie vexatious or oppressive and liable to be stayed unless it can point to a traditional juridical advantage which the courts are well capable of assessing and which outweighs the prima facie vexation or oppression; and third, that, even if the courts have power to engage in predictive assessments of likely future returns of competing class actions, where the differing actions have differing funding models with differing incentives and disincentives attached to them, that power cannot be exercised on the basis of a standardised assumption that each action will achieve the same gross return.

36. It is noted that the High Court may accept these contentions, allow the appeal and order that the Komlotex proceeding be stayed but that it is also possible that the appeal may be allowed and the cross-stay applications brought by Ms Wigmans and Komlotex remitted to this Court for redetermination. It is said that, in the latter event, if the orders proposed by Komlotex and Fernbrook are now made, it is possible that by the time the cross-stay applications are remitted to this Court a mediation will have been conducted and potentially a settlement reached; and it is said that, even if that has not yet happened, Komlotex and Fernbrook would no doubt argue on remittal that they are ready to proceed to mediation without the need for any further opt out or registration process whereas Ms Wigmans is not. It is said that either possibility would substantially deprive Ms Wigmans of her success in the High Court through orders which had been made on the basis, since found to be unlawful, of the stay of the Wigmans proceeding.

37. The submission that is here made (see at T 20) is that the prejudice to the High Court appeal, or to the High Court’s processes, arises precisely because of the possibility of remittal (which, Ms Wigmans notes, is considered by Komlotex and Fernbrook in their submission on the present applications to be the more likely outcome if the appeal were to succeed). It is said (see at T 20) that:

On this hypothesis, the Wigmans proceeding would have been stayed through an error of law. So the Wigmans proceeding right now on this hypothesis would be stayed in error, and what the plaintiffs seek to do in that scenario is take advantage of that putative error of law and the steps that have been taken in these proceedings on the basis of the state of affairs created by that error, namely that these proceedings are continuing and the Wigmans proceeding is not, and deploy those matters to its advantage, to their advantage, on any remitter. And this would substantially deprive Ms Wigmans of her success in the High Court on the assumption that she has been successful.

38. What is apparently here contemplated is that, if the stay on the Wigmans proceeding is lifted and the matter is remitted to this Court and there is a question about which proceeding should be permitted to go ahead (assuming there was only to be one), Ms Wigmans might be met by an argument by Komlotex and Fernbrook that the Komlotex proceeding should not be stayed (and conversely that the Wigmans proceeding should be stayed) because of the stage of preparedness of the Komlotex proceeding (i.e., if by then the opt out and registration processes have already been completed and, perhaps, there has been an agreement in principle reached for settlement). It is submitted that reference in the authorities to an appeal being rendered nugatory or abortive is a reference to the situation where events are allowed to move on in the underlying proceedings to a point where the appeal will be incapable of bringing about the result that the appellant seeks. It is said that this is precisely the risk in the present case. In that regard, reliance is placed on the statements of principle in Gerah Imports Pty Ltd v The Duke Group (in Liq) [1994] HCA 3; (1994) 68 ALJR 196 (Gerah Imports), Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [No 2] [1998] HCA 32; (1998) 72 ALJR 869 (Patrick Stevedores) and Advanced Building Systems Pty Ltd v Ramset Fasteners (Aust) Pty Ltd [1997] HCA 24; (1997) 71 ALJR 814 at 815 (Advanced Building Systems).

39. Indeed, it is further contended that the making of the proposed orders and their being carried into effect may have an even more direct effect on the High Court proceedings in the event that the Court is deliberating about whether to remit the matter to this Court or not. It is here said that Komlotex and Fernbrook may submit in the High Court that it should not stay the Komlotex proceeding but should instead remit the matter, precisely because of the steps since taken in the Komlotex proceeding towards opt out, registration and mediation.

38. It is submitted by Counsel for Ms Wigmans that the risk is “even more stark” insofar as the progress of the matter might be relied upon when the matter is before the High Court as relevant to the exercise of discretion as to the relief that ought be granted if Ms Wigmans is successful (see T 21). It is submitted that it would “make a mockery” (see T 22) of the appeal process if it were open to Komlotex and Fernbrook to be able to conduct the proceeding to resolution while the High Court appeal is pending.

39. Ms Wigmans says that this course should not be countenanced and that she, like any litigant, is entitled to exercise her rights of appeal. It is further said in this respect that she has exercised those rights and has obtained a grant of special leave to appeal; and that her appeal rights should not be undermined by the taking of steps in the proceedings below on the basis of the very state of affairs she says has come about unlawfully.

40. Insofar as Ms Wigmans has not advanced submissions in the High Court against various of the conclusions reached in the multifactorial analysis (that she says was wrongly conducted) in the Stay Judgment, it is said that this does not mean that there is no disadvantage to her in the conduct of the Komlotex proceeding (cf the contention by Komlotex and Fernbrook that she cannot point to any disadvantage or detriment in the conduct of the proceeding pending determination of the High Court appeal). It is said (see at T 25) that:

Ms Wigmans commenced her proceeding exercising the right conferred upon her by s 157 of the Civil Procedure Act to do so on behalf of group members as lead plaintiff with lawyers, funders and pleading of her choice. If she succeeds on appeal, if she succeeds in the High Court appeal, the result will be that those rights have been taken away from her through an error of law and that is what Ms Wigmans seeks to reclaim through the appellate process. If her appeal rights in that respect are rendered nugatory, that, in my respectful submission, is prejudice. …

… Just because no point is being run in the High Court to the effect that the High Court should find Ms Wigmans' proceedings are better or more likely to result in a greater outcome, because we say that's an assessment which courts simply are not well placed to make, and just because no ground of appeal has been advanced on the basis that the Court could make an assessment, that one set of lawyers is more competent than the other set of lawyers, does not mean that Ms Wigmans therefore has no legitimate interest in pursuing the appeal in the High Court or for that matter in pursuing this proceeding. And it does not mean that rendering Ms Wigmans' appeal right nugatory does not count as prejudice, remembering that the effect of the authorities is prima facie - the ordinary course is that if someone's appeal rights are going to be rendered nugatory you would grant a stay. That's the position in Cambridge Credit, for example, my learned friends rely upon.

Second identified prejudice - confusion

43. Ms Wigmans argues that the proposed opt out notice (Schedule A to the Komlotex motion) is inadequate and prejudicial in how it describes the Wigmans proceeding and the extant High Court appeal. Specifically, complaint is made that the notice does not mention the Wigmans proceeding until the bottom of the fourth page of the notice; that there is no heading or other prominent indication of the subject matter; rather, the Wigmans proceeding is addressed at the end of a section titled “What is the AMP Shareholder Class Action?” (where “AMP Shareholder Class Action” is defined on the first page of the notice as the action commenced by Komlotex and Fernbrook).

44. It is noted that the proposed opt out notice (at [18]) summarises the Stay Judgment with the single sentence “On 23 May 2019 the Supreme Court of New South Wales found that the best and most efficient result for group members and fairness to the defendant was for the AMP Shareholder Class Action brought by Komlotex and Fernbrook (in which Maurice Blackburn act as solicitors) to proceed and for the Wigmans Proceedings to be stayed”. Further, complaint is made that:

While that sentence accurately records AMP’s characterisation of the Court’s task, recorded in the Stay Judgment at [349], it hardly captures the complex task that was before this Court. No mention is made of the fact that the Wigmans proceeding was commenced nearly a month before the Komlotex proceeding. Expressing the matter in this way may give group members the impression that the Court found that the Wigmans proceeding was inefficient or involved unfairness, when, of course, no such finding was made by the Court.

45. Insofar as the proposed opt out notice states “[i]t is not known when the High Court hearing will occur, and it may not be until 2021” (at [20]), it is said that this is misleading by reference to Mr Scattini’s present best estimate (being that the High Court hearing will be in September, October or November of this year).

46. It is also said that the description (at [20a]-[20e]) of what may happen if Ms Wigmans is successful on appeal is apt to mislead group members in the following respects.

47. First, insofar as it states that “the AMP Shareholder Class Action brought by Komlotex and Fernbrook may be stayed and the Wigmans Proceedings allowed to proceed”, it is said that no explanation is given as to what it would mean for the Komlotex proceeding to be “stayed” (this being said to be a legal term of art the meaning of which may not be apparent to a member of the general public); and that nowhere is it clearly stated that a stay of the Komlotex proceeding will mean that the opt out process is legally ineffective, any mediation will either not take place or will have been ineffective and any settlement reached will not be carried into effect.

48. Second, it is said that the statement that that “may, or may not, affect steps that have been taken up until that point in the AMP Shareholder Class Action brought by Komlotex and Fernbrook” is plainly incorrect. It is said that, if the Komlotex proceeding is stayed, that will undoubtedly affect steps taken up until that point in that proceeding.

49. Third, the statement that “you may be a group member of the Wigmans Proceedings, unless you opt out (or have already opted out) of the Wigmans Proceedings (and possibly even if you have opted out of these proceedings brought by Komlotex and Fernbrook)” is said to be misleading and incorrect. It is said that group members in the Komlotex proceeding will (not “may”) be members of the Wigmans proceeding unless they opt out and whether or not they have opted out of the Komlotex proceeding is irrelevant to whether they will be a group member in the Wigmans proceeding.

50. Fourth, insofar as reference is made to the different funding arrangements in the Wigmans proceeding and it is stated “[t]hat may result in a different amount being deducted from any amount payable by AMP, either from a judgment or a settlement”, it is said that, “[w]hile correct at an abstract level, it is hardly information of any use to group members expressed at that level of generality”.

51. Fifth, it is said that the statement that “there may be other effects on the conduct of the class action against AMP” leaves “entirely obscure” what is meant by the opt out notice.

52. Further complaint is made that the proposed opt out notice “entirely fails” to draw group members’ attention in a prominent way to the fact that they are being asked to opt out in circumstances where there remains on foot a live debate about which class action should proceed against AMP, which debate once resolved could result in the entirely opt out process being rendered legally ineffective. It is said that no attempt is made in the opt out notice to explain why group members are being asked to make this important decision in these circumstances.

53. It is also said (see at T 32) that the opt out notice does not clearly state (in plain English to non-legally trained group members) that if Ms Wigmans succeeds on appeal and the Komlotex proceeding is stayed then: the Komlotex proceeding will not go forward; any opt out in the Komlotex proceeding will be of no effect; any registration by group members in the Komlotex proceeding will be of no effect; if any mediation has been conducted in the proceedings any settlement reached at that mediation will not bind anyone; and (see at T 33) opt out in the Komlotex proceeding will have no effect on the Wigmans proceeding.

54. It is submitted that the abridged form of opt out notice (Schedule B to the Komlotex notice of motion) is “even more inadequate” because it fails even to mention that Ms Wigmans has been granted special leave to appeal by the High Court and that a result of the appeal may be the stay of the Komlotex proceeding (stating only that if the appeal is successful “it may have an effect on the conduct of the class action against AMP”).

55. From a practical perspective, it would seem that the principal, if not sole, complaint by Ms Wigmans as to the orders proposed is as to the course of issuing opt out notices pending the High Court’s determination of her appeal (since she appears to accept that, were the parties to be inclined to proceed to mediation at this stage, they could do so without any basis for complaint by her).

56. In that respect, Ms Wigmans points to the authorities (not disputed by the other parties) to the effect that opt out orders ought not be made when there is still a live controversy as to which of a number of overlapping representative proceedings is going to proceed. Reference is made to Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 56; (1999) ATPR 41-679 (Johnson Tiles) where Merkel J said (at [14]) that “[p]lainly, the Court will seek to avoid a situation of ordering the giving of the opt out notice in respect of a proceeding which may not be an, or the, appropriate representative proceeding”. Reference is also made to King v GIO Australia Holdings Ltd [2001] FCA 270 at [15] (per Sackville, Hely and Stone JJ) as to the importance that any decision made concerning opting out of the proceedings not be based on a notice that is apt to mislead and to Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia (No 4) [2010] FCA 749 (Pharm-a-Care) where Flick J (at [18]) considered that it may be appropriate to defer the giving of any notice until after any notices of motion seeking to have a proceeding stayed or dismissed is resolved, noting that to do so may limit the extent to which further notices to group members may be required. Ms Wigmans says that the undesirability of having successive opt out notices issued, particularly where the group is very large, is obvious.

57. In making a number of criticisms as to the content of the proposed (revised) opt out notice, Ms Wigmans points out that an opt out notice “must be readily comprehensible by non-lawyers” and “written in plain English” (citing Courtney v Medtel Pty Ltd [2001] FCA 1037 at [10] per Sackville J).

58. As to the second (and third) categories of identified prejudice (confusion and wasted costs), while Counsel for Ms Wigmans ultimately accepted that one could not say there was no possible benefit in having held a mediation in advance, it is submitted that it is more difficult to see how that benefit can later be “picked up” (see at T 26) for the benefit of group members in the Wigmans proceeding in the case of a mediation held without Ms Wigmans’ lawyers having been a part of that process (and that this too would risk bringing the administration of justice into disrepute). It is submitted that it would be confusing and extremely costly (including the cost of dealing with opt out and registration notices and the like) (see T 26).

59. In this regard, it is noted that the undesirability of issuing opt out notices at a time when the ultimate vehicle for prosecution of group members claims has not finally been resolved was recognised by the solicitor for Komlotex (now acting for both Komlotex and Fernbrook), Mr Andrew Watson, at a time when the initial disputes as to the jurisdiction in which the competing class actions should proceed was before the Court. Reference is made to what was said by Mr Watson at that time in his affidavit in support of Komlotex’ position that no opt out notices should be published prior to resolution of the multiplicity of proceedings, namely that:

… if this Court were to make orders for the undertaking of any further steps in this proceeding (including, in particular, for the distribution of any notices to group members) in advance of the resolution of the Transfer Applications and the Case Management Issues, it is possible that such steps will need to be repeated and/or revised in the future depending on the outcome of the Transfer Applications and the resolution of the Case Management Issues. The revision or repetition of such steps is, in my opinion, highly undesirable due to the likelihood of confusing group members and incurring significant unnecessary costs.

60. It is noted that Komlotex submitted at about the same time that:

Further, if there are to be any orders made in relation to the multiplicity of overlapping actions then this needs to be resolved before any orders are made for opt out, a common fund, or class closure. Any other approach may lead to notices being sent to group members on a false or misleading basis, and the need to attempt to unscramble the resulting position at very considerable cost and trouble.

Third identified prejudice - wasted costs

61. Third, it is said that requiring group members to opt out now has the potential to cause significant wasted costs and expense. It is said, in this regard, that this expense will include the costs of administering the process of distributing opt out notices to group members. It is said that, even if the parties are willing to bear that expense at their own risk in the event that the Komlotex proceeding is ultimately stayed, theirs is not the only relevant interest. Rather, given that opt out notices are to be provided to the Court and are managed on the Court file by Court staff, and although the proposed opt out notice contains (as is standard) a warning not to direct questions to the Court, such warnings are necessary precisely because it is commonplace for Court staff to receive such queries. It is said that the Court’s resources should not be burdened by the need to undertake an opt out process twice.

62. Ms Wigmans contends that the combination of the confusion to group members (the second identified prejudice) and wasted costs of two successive opt out processes (the third identified prejudice), as adverted to above, is such that, in the event that the proposed orders are made and the Komlotex proceeding is subsequently stayed, there is a danger that the administration of justice will be brought into disrepute.

63. Ms Wigmans says that the comments by Mr Watson that I have referred to above (made at a time prior to any determination having been made about which proceeding should go ahead against AMP) as to the undesirability and wasted expense of trying to “unscramble” the position if opt out notices are given to group members ahead a final resolution of multiplicity are equally applicable to the situation where notices are given in the Komlotex proceeding if it is later stayed.

64. It is submitted (see T 27(34)) that once opt out notices have been issued it is “difficult and costly to unscramble the egg”; and that this is an obvious risk of prejudice if the orders are made but Ms Wigmans is ultimately successful in the High Court. In this regard, it is submitted that the reliance placed by AMP on the approach that was adopted in Jones v Treasury Wine Estates [2017] FCA 296 (Jones) (as to which, see below) is not apt since that case raised different issues and there was no suggestion that if the relevant decision was overturned that would lead to a permanent stay of the Jones proceeding such that that there would still have been a need for opt out orders in any event (see T 27-28).

Prejudice if Komlotex orders not made

65. As to the prejudice on the other side of the ledger, as adverted to above, it is accepted that if the proposed orders are not made, and Ms Wigmans fails on the appeal, this would result in a delay as to when a mediation would occur (on the assumption that the parties do not wish to mediate until after the opt out procedure has been completed). Apart from expressing scepticism as to whether a mediation by 11 December 2020 will in fact take place in any event (see T 29), as already noted Ms Wigmans maintains that the delay will only be in the order of two to three months (at least if the expert evidence is prepared in the interim). It is said that a delay of a few months in the context of a large commercial dispute which, if it went to trial would not be resolved for some time, should not be overstated (see T 29).

66. It is said that the extent of such delay should not be overstated and that:

Even if opt out and registration orders are made, it may be doubted that AMP would be willing to mediate with the High Court appeal hanging over its head. It may be that any mediation would need to await the High Court’s decision. If the opt out and registration orders are not made, Ms Wigmans does not oppose the parties taking such steps as they can at their own cost risk, such as the service of without prejudice evidence, so as to be prepared to go to mediation as soon as possible if she is unsuccessful in the High Court. If the appeal is dismissed, the Court could then make orders for opt out and registration with a view to the parties proceeding to mediation as soon as practicable.

67. Further, it is observed that a delay in mediating might, or might not, substantially delay the final resolution of these proceedings. Any settlement would, in any event, need to be approved under s 173 of the Civil Procedure Act, which could not occur until after the High Court’s decision in any event. It is said that, if the matter does not settle, a final hearing and determination of these proceedings may be years away and in the context of a large, multi-year dispute, a delay of several months, while undesirable, does not create undue prejudice.

68. In summary, it is said (at T 29.34-42) that:

Balancing the prejudice, … the risks are far greater on the side of the ledger where your Honour makes the orders. If your Honour makes the orders and we succeed on appeal, the prejudice which I’ve outlined to your Honour, first of all involves the integrity of the appellate process. Secondly, it involves the clarity and integrity of the opt of process, which is essential to the operation of pt 10. Thirdly, it could involve widespread confusion and significant waste of costs of third parties, we’re referring there to third parties being primarily the group members

Haselhurst

69. A further reason put forward by Ms Wigmans against the orders now proposed by Komlotex and Fernbrook is that the registration orders sought are beyond power because they are an attempt to achieve, by another means, the type of “class closure” found by the Court of Appeal to be beyond power in Haselhurst.

70. The impugned order the subject of Haselhurst (referred to as a “soft” class closure) was as follows:

16. Pursuant to s 183 of the Act, any Group Member who neither opts out in accordance with Order 12 nor registers in accordance with Order 15 on or before the Class Deadline shall remain a Group Member for the purposes of any judgment or settlement but, in the event that an in-principle settlement is reached before the commencement of the trial on the common issues and that settlement is ultimately approved by the Court, shall be bound by the terms of the settlement agreement and barred from making any claim against the Defendant in respect of or relating to the subject matter of this proceeding, including participating in any form of compensation or otherwise benefiting from any relief that might be ordered or agreed.

[Emphasis added]

71. Ms Wigmans points to two aspects of the impugned order that she says were there found to be problematic: the fact that it effected a contingent extinguishment of group members’ rights and that this would be “even though hitherto they have taken no active part in the proceedings, and their rights against the relevant defendant have benefited from s 182 of the Civil Procedure Act suspending time from running for the purposes of a limitation defence” (see Haselhurst at [47] per Payne JA).

72. Relevantly, the context in which the power to make such an order was being considered was where the order had been made prior to any mediation having been held and, for the impugned order to be within power pursuant to s 183 of the Civil Procedure Act, it would need to be shown that it was necessary to ensure or attain justice.

73. Ms Wigmans emphasises that the Court of Appeal in Haselhurst considered the scheme of the legislation and, in particular, Ms Wigmans says that the order was “problematic” not just because “[g]roup members who fail to register are not entitled to participate in a distribution of settlement proceeds and yet are ‘barred from making any claim against the Defendant’” (Payne JA at [52]) but also because it was recognised that the scheme of the class order processes under the legislation was that, up to the point of settlement or judgment, “[g]roup members need take ‘no positive step’ in the prosecution of the proceeding to judgment to gain whatever benefit its prosecution may bring, whether that benefit arises by a settlement (s 173) or a judgment (s 177)” (see Haselhurst at [54] per Payne JA). Ms Wigmans goes so far as to submit that this is an “entitlement” or right on the part of group members under the statutory regime.

74. Thus, even though the orders now proposed by Komlotex and Fernbrook do not provide for the contingent extinguishment of group members’ causes of action, Ms Wigmans says that the stated intention, if settlement in principle be reached at mediation, to seek an order precluding those who have not registered from participating in the settlement is inconsistent with the recognition by the Court of Appeal that a group member is “entitled” (to use Ms Wigmans’ language) to do nothing until the point of settlement or judgment in order to take the benefit of the cause of action.

75. Ms Wigmans points in that regard to the following observations made by Payne JA (with whom all members of the Court of Appeal agreed).

76. First, (at [87]) that:

… A Group Member bombarded with detailed information about the proceedings need take no positive step in the prosecution of the proceeding to judgment or settlement to gain whatever benefit its prosecution may bring. Once there is an amount of money available, whether by judgment or settlement, the Group Member will then have to take a positive step to share in the proceeds …

77. Second, (at [105]) that the power to bar a claim held by a group member is one that arises at the conclusion of a representative proceeding. It is noted that Payne JA considered that there were permissible ways to close the class other than as contemplated by the impugned order 16: for example, by amending the originating process to narrow the class definition to those who in addition to having a claim against the defendant had also registered themselves or had retained the same firm of solicitors or agreed to a funding agreement with an external funder (see at [67]).

78. Ms Wigmans places emphasis on the recognition by his Honour (at [120]) that a class closure order would have:

… the effect that the appellants and their legal advisors will necessarily face an insoluble conflict of interest in any mediation or settlement discussion. It is in the interests of all Group Members who have registered to achieve a favourable settlement. It is in the interests of Group Members who have not registered for the proceedings not to settle regardless of the terms offered. This is because order 16 has the effect that they will recover nothing should the matter settle but should the matter proceed to hearing they may be entitled to damages.

79. It is noted that his Honour concluded (at [122]) that the impugned order “[struck] at the heart” of the Part 10 regime “by setting up an alternative regime of extinguishment of Group Members’ rights of action for the purpose of encouraging the parties towards a pre-trial settlement”.

80. Ms Wigmans also refers to the judgment of Bell P, where his Honour considered that it was not difficult to conceive that any uncertainty in the number or identity of group members could be addressed by structuring a settlement on a pro rata basis to accommodate the uncertainty (see at [16]). His Honour also considered that:

… if registration was sought as a condition of mediation (without the fatal consequences of non-registration which order 16 mandates), it could be sought with a view to amending the class definition so that any settlement only applied to those members who had registered. This would avoid the risk of the respondents ‘overpaying’ in any settlement, if that risk represents their genuine concern. Settlement of the claims of those consumers who had manifested their concern by taking an active step of registration could at least be achieved, without those who had neither opted out nor registered losing their causes of action.

81. Ms Wigmans says that the effect of the class closure order made in the present proceeding (order 15 made on 12 March 2020, as extracted earlier) is relevantly the same as in Haselhurst: to effect a contingent extinguishment of the rights of group members who do not opt out or register in the event that the proceedings settle at or soon after mediation; and that the purpose of the orders made for opt out notices and registration is also “plainly the same as in Haselhurst” (that is, to encourage group members to register by providing for a consequence if they do not).

82. As to the proposed varied opt out regime, Ms Wigmans says that this “is an attempt to achieve, through an elevation of form over substance, what the Court of Appeal in Haselhurst has found to be beyond power and a subversion of the opt out regime” in Pt 10 of the Civil Procedure Act. Ms Wigmans maintains that what is here proposed is similarly beyond power and, even if that not be the case, Ms Wigmans maintains that the Court should not make orders inconsistent with the legislative regime. To the proposition that it would be for the Court at a later time to approve any extinguishment of rights consequent upon a failure to register at this stage, it is said that such orders would not (ever) be made and hence the Court should not now approve an opt out regime which contemplates that this would be the case (see at T 40).

83. Ms Wigmans says that the opt out regime now proposed shares an essential impermissible feature of the orders held invalid in Haselhurst, namely that group members would be required to take a “positive step” prior to any settlement or judgment in order to participate in the fruits of the proceeding. Ms Wigmans says that the purpose and effect of the proposed orders, notation and opt out notice is the same as that in Haselhurst, namely to effect a contingent extinguishment of group members’ rights based upon actions which they took, or failed to take, prior to any settlement or judgment; and that, for those reasons, the proposed regime (as did that in Haselhurst) “strikes at the heart of the Part 10 regime, by setting up an alternative regime of extinguishment of Group Members’ rights of action for the purpose of encouraging the parties towards a pre-trial settlement” (in the words of Payne JA at [122]).

84. Ms Wigmans says that, for the reasons explained in Haselhurst, the proposed regime cannot be justified on the basis that it is a practical necessity in order to achieve a settlement; and that the proposed regime would create the same “insoluble” conflict of interest in the course of settlement discussions as that identified in Haselhurst. It is said that, having announced a commitment to seek orders post-settlement extinguishing the claims of non-registrants, the plaintiffs and their legal advisors “would be caught in a conflict between the interests of registered group members and the interests of other group members who had not registered”.

85. It is further submitted that the future order which is contemplated by the notation and the opt out notice is not an order that could ever be made. It is said that it could not, consistent with the views expressed in Haselhurst, be “just” within the meaning of s 173(2) of the Civil Procedure Act for orders to be made after settlement extinguishing the claims of group members on the basis of steps that they took or failed to take pre-settlement; just as such an order could not be thought to be “necessary to ensure that justice is done in the proceedings” within the meaning of s 183. Nor, it is said, for the purposes of settlement approval under s 173(1) could such a settlement be thought to be fair and reasonable in the interests of group members as a whole, having regard to what is said in Haselhurst.

86. Ms Wigmans says that it is notable that what is now proposed by Komlotex and Fernbrook is not one of the options identified by the Court of Appeal in Haselhurst as a permissible “class closure” regime. That is, the Court of Appeal there adverted to two such options: inviting registration pre-settlement and seeking to narrow the class definition to include only those group members who register (leaving non-registrants free to pursue their claims); or, making an order requiring group members to register to participate in a settlement that has already been reached or judgment that has been handed down. The complaint here made is that the proposed orders contemplate the extinguishing of the claims of group members for failing to take a positive step prior to settlement.

87. It is also submitted that, while not a matter of power, there is no sensible means of explaining to group members the fine distinction between an order made now which contingently extinguishes their rights if they neither opt out nor register and an order that will be sought later which will extinguish their rights in the same event. It is submitted that a group member reading the proposed opt out notice would have the impression that if they fail to register they will be at risk of their rights being extinguished (which Ms Wigmans says is precisely the impression which is intended to be conveyed).

88. Thus it is argued that, even if not beyond power, the proposed orders are inappropriate as they subvert the regime of Pt 10. As to the reliance here sought to be placed by Komlotex and Fernbrook on the decision of Jagot J on 28 April 2020 in Inabu Pty Ltd vCIMIC Group Ltd [2020] FCA 510 (CIMIC), Ms Wigmans says (see at T 74) that the proceeding before Jagot J was by consent; and notes, particularly, that there is no indication (from the reasons which were delivered ex tempore) of any group member making any submission that settlement should not be approved because the extinguishment would thereby be affected (albeit inconsistent with the decision in Haselhurst). It is further said, specifically as to Haselhurst, that the only submissions that appear to have been made to her Honour in relation to that decision was that the reasoning of the Court of Appeal supported the proposition that the Court could make an order extinguishing a group member’s claim under ss 33V and 33ZB of the Federal Court Act 1976 (Cth) at the time of approving a settlement (contra Ms Wigmans’ submissions made before me on the present applications).

Delay

89. Ms Wigmans’ rejects any criticism of delay on her part in making the present application. Her rejection of such criticism is based on the following: first, that Ms Wigmans does not now seek a stay; and second, in any event, that Ms Wigmans cannot be criticised for failing to make this application at an earlier stage in the proceedings when the only steps then contemplated were the completion of pleadings, the service of lay evidence and conferral with respect to discovery. It is noted that no notice was provided to Ms Wigmans that the orders made on 12 March 2020 or 9 April 2020 would be sought; and it is said (and I accept) that Ms Wigmans moved promptly, after she became aware of the orders and after the outcome of her special leave application on 17 April 2020, to seek the relief she is now seeking. (I do not consider that there is any relevant delay on Ms Wigmans’ part in seeking the relief she now seeks.)

Ms Wigmans’ proposed orders

90. Ms Wigmans contends that the orders which she has now proposed: do not disturb the orders previously made for discovery by the parties; but would vacate the orders previously made in respect of opt out, registration, class closure and mediation; would also vacate the orders previously made in respect of the service of “material on quantum and materiality” by the parties (but only because those orders as framed refer to reliance upon such material for the mediation set down by the orders; and would have the matter re-listed following the determination of the High Court appeal, but with liberty to apply reserved to the parties (as well as Ms Wigmans)).

91. Ms Wigmans says she does not seek to prevent Komlotex and Fernbrook and AMP from serving such materials on a without prejudice basis to be relied upon at a mediation that may be ordered in the future (and Ms Wigmans has framed orders on that basis). Ms Wigmans says that she takes that position notwithstanding that such orders would allow the plaintiffs to “catch up” with Ms Wigmans in terms of case preparation (which may be relevant in the event that Ms Wigmans succeeds in the High Court but the cross-stay applications are remitted to this Court). In that respect, Ms Wigmans says she recognises that there is a balance which must be struck short of enjoining any further steps being taken in these proceedings.

92. It is also said that, should the parties consider that there are further steps which might be taken in the proceedings (which will not interfere with the High Court appeal or create a risk of prejudice, such as opt out, registration and mediation orders), they would be free to seek orders in relation to those matters.

Komlotex and Fernbrook submissions

93. The submissions of Komlotex and Fernbrook may be summarised as follows.

Opt out notice and related issues

94. The complaint made by Komlotex and Fernbrook as to Ms Wigmans’ application is that Ms Wigmans, not having applied for a stay of the orders made on 23 May 2019 permanently staying her proceedings and permitting the consolidated Komlotex proceeding to proceed, now “belatedly” seeks to interfere with the conduct of this proceeding by setting aside orders of this Court providing for the further progress of the matter. Komlotex and Fernbrook say that the orders that Ms Wigmans now proposes (as set out in Exhibit B on the present applications at pp 108 and 109) would have the practical effect of staying a substantial part of the ongoing conduct of this proceeding, particularly interfering with the steps towards and conduct of an early mediation in the present proceeding (noting that an early mediation with AMP was the very thing that Ms Wigmans had sought to do in her own proceeding).

95. Komlotex and Fernbrook maintain that the present proceeding is being advanced for Ms Wigmans’ benefit (she being a group member in the present proceeding) and that Ms Wigmans cannot demonstrate a real risk that she will suffer prejudice or damage (which will not, or cannot, be redressed by a successful appeal) if the orders sought by her are not granted. In this regard, Komlotex and Fernbrook seek here to emphasise that the orders sought by Ms Wigmans would cause her prejudice by substantially delaying the proper prosecution of the proceedings against AMP and delaying the potential resolution of the proceedings. Komlotex and Fernbrook contend (and, I note, that the very making of this contention was met with vehement objection by Counsel for Ms Wigmans) that the only prejudice that could conceivably be caused by the continuation of the present proceeding would be to Ms Wigmans’ solicitors and the funder of her proceeding. It is submitted that the motion filed on behalf of Ms Wigmans is transparently for their benefit, rather than that of Ms Wigmans.

96. Komlotex and Fernbrook also emphasise that, not only was no appeal brought in relation to the findings as to the comparative advantages of the respective proceedings in the Stay Judgment, but that, in the High Court proceeding, Ms Wigmans argues that it would be inappropriate for the Court to engage in any such assessment. It is noted, in this regard, that Ms Wigmans likewise accepts that the respective legal teams are equally competent. It is submitted that the basis of Ms Wigmans’ appeal to the High Court is that the proceedings are essentially duplicative. Hence it is argued that no purpose, for the benefit of Ms Wigmans, is served by the orders now sought; and that they would only serve to cause delay.

97. Insofar as Komlotex and Fernbrook now seek, in effect, to vary the orders previously made in relation to the opt out regime, it is said that this is for abundance of caution in light of Haselhurst. Komlotex and Fernbrook say that the orders made on 12 March 2020 and 9 April 2020 were not orders which had the “problematic” effect of the impugned order considered by the Court of Appeal in Haselhurst and they point out that, in CIMIC, Jagot J made orders approving a settlement and making final orders limiting participation in the settlement to persons who had registered some 18 months earlier and prior to the commencement of a mediation process. It is said that the registration orders in CIMIC were similar to orders 11 to 15 made in the present proceeding on 12 March 2020 and it is noted that Jagot J held that nothing in the Haselhurst decision was a barrier to the making of the orders giving effect to the earlier registration orders (by excluding from participation in the settlement those who had not registered).

98. Komlotex and Fernbrook say that the proposition advanced by Ms Wigmans has “shifted” somewhat in the course of seeking special leave. In particular, it is submitted that, in the course of the oral submissions on the application for special leave, Senior Counsel for Ms Wigmans accepted that first in time is not determinative and that the Court may properly have regard to a range of matters pursuant to s 58 of the Civil Procedure Act. There was debate before me as to how, if at all, that argument crystallised in the course of the special leave hearing (as a result of which Komlotex and Fernbrook say that Ms Wigmans cannot here rely upon any alleged advantage her proceeding would have over the present proceeding in which her interests are being advanced by the continuation of the proceeding).

99. Komlotex and Fernbrook here argue that, given that Counsel for Ms Wigmans accepts that it would be appropriate to take into account a number of considerations, which Komlotex and Fernbrook says must include security and the stage at which the proceedings sought to be stayed had reached, even if Ms Wigmans succeeds on her argument in the High Court, the most likely outcome is that the matter will be remitted for further consideration in light of that decision. In this regard, Komlotex and Fernbrook says that this would not necessarily (“or even likely”) result in the present proceeding being stayed. Further, it is said that even if the present proceeding were to be stayed, it is likely that orders would be made such that group members have the benefit of steps (such as pleadings, discovery and evidence) that had been taken in the present proceeding.

100. Komlotex and Fernbrook say that the practical effect of the orders that Ms Wigmans seeks will be to frustrate the conduct of the present proceeding by interfering with the next step which those acting in these proceeding believe to be in the best interests of group members (namely, to prepare for and proceed to a mediation). Insofar as Ms Wigmans’ position is that she does not wish to prevent the discovery (for mediation purposes) and preparation of evidence (for mediation purposes) but does object to other steps leading to mediation (opt out notices; registration and the mediation itself), Komlotex and Fernbrook (and, I interpolate to add, AMP) object to Ms Wigmans, in effect, attempting to dictate the manner in which preparation for mediation is proposed. In that regard, AMP says that the proposed orders comprise a “package” of orders that have been the result of discussion and negotiation between the representatives for AMP and Komlotex and Fernbrook. Hence, as I understand it, there is objection to the notion put forward by Ms Wigmans that the preparation of expert evidence should be required to be undertaken prior to the issue of opt out notices.

179. As to the accuracy of the statement that “you may be a group member of the Wigmans Proceedings, unless you opt out (or have already opted out) of the Wigmans Proceedings (and possibly even if you have opted out of these proceedings brought by Komlotex and Fernbrook)”, the criticism made by Ms Wigmans, as I understand it, is premised on all group members in the Komlotex proceeding being group members in the Wigmans proceeding (i.e., that there is a complete congruity between the respective classes in that respect, even though the class in the Wigmans proceeding itself is said to encompass additional group members). I consider that the complaint as to this statement is not one of substance. If the issue is that all group members of the Komlotex proceeding must, by definition almost, be members of the class the subject of the Wigmans proceeding then of course, unless they have opted out from that proceeding (and opt out had not yet taken place by the time the proceeding was stayed), they will be group members in both proceedings.

180. Whether or not opt out of the Komlotex proceeding is (as Ms Wigmans maintains) irrelevant to whether someone is a group member of the Wigmans proceeding (which is currently stayed), it seems to me that it would likely be more confusing to entertain all permutations of the respective class memberships in what is on its face a general notification to the effect that a group member of the Komlotex proceeding may also be a group member of the Wigmans proceeding unless that group member opts out (or has opted out) of the Wigmans proceeding; and the statement in parentheses in the proposed draft does not to my mind render that misleading. In my view, the important fact to convey is that a group member may be a member of both groups (accepting, as I do, that Ms Wigmans’ position is that there is no doubt about this) since that is presumably relevant to a decision whether to opt out of one or the other or both (if that position in due course arises).

181. As to the reference to the different funding arrangements (and that this may result in a different outcome either from a judgment or settlement), the fact that Ms Wigmans accepts that this is correct at “an abstract level” is sufficient, in my opinion, to dispose of the complaint. A group member who wishes to obtain more information as to the different funding arrangements would readily be able to obtain it.

182. As to the abridged form of the notice, I consider the complaint to be unfounded. Importantly, it does make clear that if Ms Wigmans’ appeal is successful it may have an effect on the conduct of the class action against AMP.

183. I accept the need for an opt out notice to “be readily comprehensible by non-lawyers” and “written in plain English”. I also accept that one would not approve the publication of an opt out notice that was apt to mislead. In my opinion, with the amendments contemplated above and discussed in the course of argument on the present applications, I consider that the proposed revised opt out notice (a further version of which was provided following the hearing of the applications) satisfies the requirements of an opt out notice in this respect. I will however, when these reasons are published, consider whether the parties seek an opportunity to make final revisions to that notice before making final orders in that regard.

Are the orders beyond power in light of Haselhurst?

189. Payne JA in Haselhurst set out (from [34]) the statutory scheme of Pt 10 of the Civil Procedure Act and it is not necessary here to extract the relevant sections of the Act. His Honour identified the critical parts of that scheme, for present purposes there before the Court of Appeal as, inter alia, ss 157, 159, 162, 163 and 182. His Honour noted, relevantly, that consent is not required to be a group member (at [35]) and that the running of the limitation period that applies to the claim of a group member to which the proceedings relate is suspended by operation of s 182. His Honour noted that concomitant with the scheme not requiring the consent of a group member to participate is the right of a group member to “opt out” of the representative proceedings (see at [37] and see s 162) and that there is a specific power to alter the definition of group members (see at [38] and s 163). His Honour identified that the provision at the “heart of [the] appeal” in Haselhurst was s 183, which empowers the Court to make orders that the Court “thinks appropriate or necessary to ensure that justice is done in the proceedings” (see at [43]). (I interpolate to observe that s 183 is not similarly at the heart of the present application, although the submissions at times suggested that it was.) Pausing here, I note that his Honour also referred (at [45]) to the vice of labels used to describe class “closure” orders as if the label, or labels, sufficiently delineated the order.

190. His Honour (at [46]-[47]) described the impugned order as follows:

46.   Order 16 deals with Group Members who neither opt out nor register following a three month period of advertisement. The order applies in two distinct ways to such persons. First, it provides that they “shall remain a Group Member for the purposes of any judgment or settlement”. That is entirely superfluous. The Civil Procedure Act provides that Group Members are all persons so defined by reference to the pleadings who have not opted out. It is clear from s 163(1) of the Civil Procedure Act that there is power to alter the description of the group as the litigation progresses. The class of persons who are Group Members may vary from time to time following (a) an amendment to the group description and/or (b) the exercise of the right to opt out.

47. The second way the order applies to Group Members who neither opt out nor register following a three month period of advertisement is to extinguish the rights of those Group Members – even though hitherto they have taken no active part in the proceedings, and their rights against the relevant defendant have benefited from s 182 of the Civil Procedure Act suspending time from running for the purposes of a limitation defence. This second way the order deals with non-registering Group Members is contingent upon “an in-principle settlement [being] reached before the commencement of the trial on the common issues and that settlement is ultimately approved by the Court”.

191. Payne JA considered that there were two problematic aspects of the impugned order: first, that it went beyond the terms of s 179(b) of the Civil Procedure Act (which provides that the Court’s judgment binds all persons in the group who have not opted out) (see [50]-[51]) and, second (at [52]), that:

52.   … Group Members who fail to register are not entitled to participate in a distribution of settlement proceeds and yet are “barred from making any claim against the Defendant”. Of course it may be necessary to revisit traditional notions of court process when dealing with the provisions governing representative proceedings and to fashion novel solutions to new problems. Part 10 provides that a court’s order in approving a settlement or after a judgment may bind Group Members who fall within the group definition but who are not otherwise parties to court proceedings, who have not been served (whether personally or through orders for substituted service), and many thousands of whom may be unaware of the litigation and may have received no notice of it.

192. His Honour noted that ah order having the last-mentioned effect (barring a group member from making a claim) is permitted in two circumstances: approval of settlement (pursuant to s 173) and judgment after a hearing (pursuant to s 177) (see at [53]). His Honour referred to the High Court’s decision in Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1; [2002] HCA 27 at [40] per Gaudron, Gummow and Hayne JJ where their Honours were there considering the then-existing version of Part 4A of the Supreme Court Act 1986 (Vic). In Mobil Oil, their Honours referred to the legislative intent of the Victorian legislation as to representative proceedings (see at [40]) being that group members “need take no positive step in the prosecution of the proceeding to judgment to gain whatever benefit its prosecution may bring”. His Honour said (and Ms Wigmans places no little weight on this) (at [54]):

54. The same remains true of Part 10 of the Civil Procedure Act. Group Members need take “no positive step” in the prosecution of the proceeding to judgment to gain whatever benefit its prosecution may bring, whether that benefit arises by a settlement (s 173) or a judgment (s 177).

193. The ratio of Haselhurst is that an order purporting contingently to extinguish group member claims (not in the context of court approval of a settlement of the representative proceeding or in a judgment) is beyond power. Payne JA emphasised that the bar to the making of claims by group members arose conditionally on the non-fulfilment of the registration condition: “that is, in order to gain whatever benefit the prosecution of the action may bring, by possible settlement, Group Members are required to take a positive step” (at [55]).

194. In the context of a submission that the Court must approve any ultimate settlement under s 173 of the Civil Procedure Act (such that the impugned order should be understood as interlocutory and subject to revision), Payne JA said (at [59]):

59.   … The clear purpose of the [impugned] order is to effect a contingent extinguishment of Group Members’ rights of action against the respondents. The effect of the order is the same; a contingent extinguishment of Group Members’ rights of action against the respondents. The relevant contingency is that the Court in any settlement approval hearing has the ability not to approve any settlement which extinguishes non-registered Group Members’ rights. If it were intended that the Court would only consider the potential extinguishment of non-registering Group Members’ rights at any ultimate settlement approval hearing, the notice to Group Members of the orders would be misleading. No such additional opportunity to consider non-registering Group Members’ rights was identified in that notice.

195. It was held that the impugned order, at least contingently, extinguished unregistered group members’ rights against the respondents and that this was beyond power.

196. In the context of a legislative framework that requires all group members to be given the right to “opt out” prior to the commencement of the initial hearing (consider s 162 and supported by requirements of notice set out in s 175(1)(a)) but where there is no requirement to “close” an open class before any hearing and where the possibility of settlement is dealt with expressly but only by imposing an additional requirement of court approval (per s 173(1)), Payne JA considered that this tended strongly against an implication that there must be power to make an order “extinguishing the rights of an unregistered Group Member in advance of any settlement being achieved (or even attempted) in order to facilitate settlement of the claims of Group Members who choose to register their claims” (see at [66]).

197. It was recognised (at [67]) that practical considerations may in many cases make it desirable to convert an “open” class to a “closed” or fully identified class of group members. In that context, Payne JA referred to a number of ways in which that might occur (see at [70]ff). His Honour identified, as examples: permitting an amendment to the originating process so as to narrow the group definition so that it applied only to persons who, in addition to having a claim against the defendant, had also registered themselves or had retained the same firm of solicitors or agreed to a funding agreement with an external funder; or, where the identities of all class members are known, amending so as to take the proceedings outside Pt 10 altogether; or, altering the class to embrace a smaller time period or to include other criteria. His Honour made reference to the other ways as summarised by Professor V Morabito in “Class Actions Instituted Only for the Benefit of the Clients of the Class Representative’s Solicitors” (2007) 29 Sydney Law Review5 at 13-20). Payne JA said (at [68]ff):

68.   It is important to observe the consequences mandated by Part 10. Persons may become Group Members without doing anything at all and without knowing that status. That depends upon the unilateral act of the representative plaintiff and the lawyers retained. Persons who are Group Members may not learn of that status through active solicitation or through notices authorised by the court or through other means.

69. An important aspect of the statutory regime protects persons who in that way, without any independent act of their own, become Group Members. Section 182 suspends the limitation period applying to a Group Member’s claim when the representative proceedings commence until such time as they conclude or the Group Member opts out.

70.   Accordingly, where the class of Group Members is “closed” by altering the definition so as to exclude persons who had not registered or had not retained the firm of solicitors or agreed to the terms of a litigation funder, then at that time the representative proceeding will cease to apply to that person’s claim and time would thereafter continue to run for limitation purposes. That result is the opposite of that achieved by order 16. Yet in many cases, a redefinition through amendment of the group definition was aptly described as “closing the class”.

198. At [81], his Honour identified the nub of the problem with the impugned order (having earlier noted that the mechanisms where a class was altered left those outside the class with the ability to pursue their claims – see at [75]) as follows:

81.   … It is one thing to make orders after a judgment answering common questions (and in the case of McMullin the creation of sub-groups to deal with all the remaining damages questions in the litigation). It is a quite different thing, in advance of any judgment about common questions or any settlement of proceedings, “in principle” or otherwise, to order that the rights of Group Members who fail to register are to be contingently extinguished.

199. Again, the distinction drawn (at [83]) was with the situation where orders resulted in a smaller and “closed” class, but did not involve “class closure”, in that the persons who had ceased to be group members were not barred from bringing separate proceedings. At [87], his Honour said:

87.   The respondents submitted that the applicants accept that class closure type orders can be made after judgment or settlement. It was submitted that it was difficult to see why such orders should be available immediately after settlement or judgment, but not beforehand. For two reasons I reject that submission. The first is that the question of power raised here directly concerns the scope of specific powers in Part 10 which are enlivened after a settlement (s 173) or a judgment (s 177). The “gap-filling” power relied upon to support order 16, s 183, does not provide a licence to rewrite the legislative prescription of the exercise of those powers. Secondly, I do not accept the functional equivalence suggested of order 16 and an order made to facilitate distribution of the proceeds of an actual settlement. It is a very different thing, as a practical matter, to make orders barring a Group Member from further proceedings if he or she fails to take a step to receive a share of a settlement, rather than to make such an order, even contingently, before any settlement has been achieved (or even apparently discussed). In the former case the Court’s responsibility to approve the settlement is there engaged. In the latter case, the present airbags controversy provides a good example of why the scheme of Part 10 is structured as it is. A Group Member bombarded with detailed information about the proceedings need take no positive step in the prosecution of the proceeding to judgment or settlement to gain whatever benefit its prosecution may bring. Once there is an amount of money available, whether by judgment or settlement, the Group Member will then have to take a positive step to share in the proceeds. Contrary to the respondents’ submissions in this Court, the Dorajay and Oz Minerals representative proceedings demonstrate that “class closure” is not necessary in order to achieve substantial settlements.

[emphasis as per Ms Wigmans’ submissions]

200. That the ratio of the decision lies in the barring effect of the impugned order is evident from [105] where Payne JA, having accepted (at [104]) the proposition that the impugned order 16 would (or would arguably) assist in the management of the proceeding in order to bring it to a resolution, said that:

105. The difficulty with the respondents’ argument, however, is that the effect of order 16 is to address a matter, the barring of a claim held by a Group Member, which is addressed in s 173 in the case of a settlement and s 177 in the case of a judgment, in each case supplemented by the specific power in s 179 to make a judgment binding all Group Members. It is, so the plurality in Brewster explains, incongruous to read a power into s 183 when other provisions of Part 10 make specific provisions apt to accommodate that task but which operate at the conclusion of the proceeding. The power to bar a claim held by a Group Member is one that arises at the conclusion of a representative proceeding …

201. At [109], Payne JA referred to the reasons of Nettle J in Brewster as being o inconsistent with a construction of s 183 as providing a separate power to extinguish group members rights, even contingently, before the time that Pt 10 specifically envisages (pointing to his Honour’s comments at [125]) and stating (at [110]):

110.   Nettle J’s reference to the legislative scheme making specific provision for the entities in respect of whom, and the point in time at which, orders distributing cost burdens and judgment or settlement proceeds may be made is inconsistent with a construction of s 183 as providing power to extinguish Group Members’ rights, even contingently, before the time that Part 10 specifically envisages. That is the effect of order 16.

[Emphasis in original.]

202. At [119], his Honour said:

119. There are two significant matters to consider. The first is that the scheme of Part 10 is inconsistent with an interpretation of s 183 as empowering the Court to make orders for pre-settlement class closure. The secondary materials provide that Part 10 was modelled on and intended to be interpreted consistently, save for some presently irrelevant express exceptions, with Part IVA of the Federal Court of Australia Act. The Australian Law Reform Commission in its report Number 134, 2018, Integrity, Fairness and Efficiency—An Inquiry into Class Action Proceedings and Third-Party Litigation Funders, at [1.54] noted that the Federal Government implemented the open class regime after careful consideration and quoted the Attorney-General at the time of the passage of the Federal Court of Australia Act amendments introducing Part IV as follows:

“It [the regime] ensures that people, particularly those who are poor or less educated, can obtain redress where they may be unable to take the positive step of having themselves included in the proceeding. It also achieves the goals of obtaining a common, binding decision while leaving a person who wishes to do so free to leave the group and pursue his or her claim separately.”

203. Counsel for Ms Wigmans emphasised the “insoluble” conflict of interest referred to by Payne JA, which it is said will also be the case in the present proceeding if the proposed orders are made. In this regard, his Honour said (at [120]):

120.   … The structure of Part 10 is that the representative plaintiffs represent the interests of the Group Members. Order 16 has the effect that the appellants and their legal advisors will necessarily face an insoluble conflict of interest in any mediation or settlement discussion. It is in the interests of all Group Members who have registered to achieve a favourable settlement. It is in the interests of Group Members who have not registered for the proceedings not to settle regardless of the terms offered. This is because order 16 has the effect that they will recover nothing should the matter settle but should the matter proceed to hearing they may be entitled to damages …

204. His Honour considered (see [121]) that a submission that, as a practical matter, there was no difference in substance between an order requiring a group member to take steps before any settlement and one of the kind discussed in Brewster (see at [94]) requiring steps to be taken after settlement has been achieved, was inconsistent with the text of the statute and the considered dicta of the majority judges in Brewster about the breadth of the power in s 183. His Honour said (at [122]):

122.   Order 16 strikes at the heart of the Part 10 regime, by setting up an alternative regime of extinguishment of Group Members’ rights of action for the purpose of encouraging the parties towards a pre-trial settlement. Self-evidently, the fewer people the respondents need to compensate, the less they believe they will need to pay to settle the proceedings. Whilst order 16 makes settlement more likely, it does so in a manner contrary to the scheme established by the legislature.

205. The remaining members of the Court of Appeal agreed, with Bell P making certain additional observations. In that regard, I note the learned President’s specific observations, consistent with those of Payne JA which I have considered above, concerning alternative means by which to achieve effective “class closure”. Relevantly, if by way of example, Bell P (at [17]) observed that:

17.   Alternatively, if registration was sought as a condition of mediation (without the fatal consequences of non-registration which order 16 mandates), it could be sought with a view to amending the class definition so that any settlement only applied to those members who had registered. This would avoid the risk of the respondents “overpaying” in any settlement, if that risk represents their genuine concern. Settlement of the claims of those consumers who had manifested their concern by taking an active step of registration could at least be achieved, without those who had neither opted out nor registered losing their causes of action.

206. I see the present application, specifically the proposed orders and opt out notice, as raising a different issue to that which was determined in Haselhurst. I do not accept that the proposed orders (which provide for the opt out process now to take place with a view to a mediation that may take place before the hearing and/or determination of the High Court appeal) have the effect of contingently extinguishing or barring the rights of group members who do not take a step in the proceeding (contra the impugned order in Haselhurst). Nor do I consider that the proposed orders (having regard to the stated intention noted in the proposed orders) are inconsistent with the statutory regime under which a group member is able to take the benefit of judgment or settlement even without taking any positive step in the proceeding.

207. Rather, what is being sought is consistent with the structure of the representative proceeding regime in that group members need take no positive step to participate in the proceeding at all at this stage but, as the legislation provides must occur, they will be required at this stage to be given notice as to their entitlement to opt out of the class and there will be a regime inter partes that provides for them to do so. If a member of the group does so, then that member’s right to commence proceedings against AMP will not be extinguished by any outcome achieved in the mediation of the dispute. Likewise, if members neither opt out nor register, then they will remain members of the class in whose interests the legal representatives will be conducting the proceedings going forward (including at a mediation). One would assume that those legal representatives (whose qualifications and experience in class action litigation were put forward in the multiplicity hearing before me and who it cannot seriously be suggested would not be well conscious of their professional and ethical obligations to group members and as officers of the Court) would do so consistent with their obligations to act in the best interest of their client and group members.

208. I do not see the fact that there has been foreshadowed an intention (assuming agreement in principle is reached in mediation) to seek an order limiting or barring the participation in a mediated settlement of persons who have not registered in compliance with the registration process now contemplated as giving rise to an insoluble conflict of interest at the time of mediation of the dispute. Without being in any way prescriptive, it seems to me that there is ample scope for negotiation of potential outcomes that might depend on the ultimate size of the class and/or its composition without there being an inevitable or insoluble conflict of interest. Further, there would be ways, if necessary, in which separate interests could be independently pursued within the course of the same mediation (perhaps with separate representation within the same firm of solicitors or with separate Counsel at the mediation).

209. For example, as presently drafted, the language of the proposed opt out notice accommodates the very steps which the Bell P and Payne JA identified in Haselhurst as a permissible means by which to put in place the condition of registration prior to a mediation taking place.

210. Indeed, were there not to be raised with group members a present intention to seek such an order or put in place such a condition in due course, then it would no doubt be suggested that the opt out notice was misleading in that respect.

211. Either way, such an endeavour on the part of the parties would require Court approval and group members who had not participated in the opt out regime would have an opportunity then to be heard. Similarly, I consider that issues as to a potential conflict of interest are more likely to arise, or perhaps even will only arise, at a time when (assuming an in principle settlement has been achieved) there is an application to restrict participation in the distribution of settlement funds only to those who have registered as part of the opt out process. That, arguably, would also arise if there were an application to amend the class (which, again, the Court of Appeal noted was a permissible way to affect closure of the class at that stage). In this way, and for these reasons and others, to my mind it is premature for the Court now to consider such issues and, even more so, effectively to stay the proceeding because of them. Put differently, commencement of the opt out process at this stage does not, to my mind, mandate the outcome of any application that might later be made (as presently intended to be made) nor does it mandate how any settlement that might be able to be achieved could be structured in the interests of all the group members. The proposed opt out notice does no more than alert group members to the intention (or present intention, and hence only the possibility) that the parties may move in the manner described in the notice.

212. Finally, while I accept that mediation of the proceeding is not an end in itself (see Bell P in Haselhurst at [13]) and wholeheartedly agree with the learned President that the function of the Court is to resolve disputes (according to law) and not to act as a mere dispute “clearing house or mediation referral agency” (see Haselhurst at [15]), I consider that it is not consistent with the overriding statutory mandate for the just, quick and cheap resolution of the real issues in dispute to countenance the further delay in the progress of the resolution of this proceeding (which, though all the representative plaintiffs including Ms Wigmans have contemplated will involve a meditation, must ultimately, if not resolved in mediation, be determined by the Court). That is, of course, provided that by so doing Ms Wigmans’ appeal rights are not rendered nugatory or otherwise relevantly prejudiced.

Conclusion

213. Were I to have reached the view that the making of the orders sought in the Komlotex motion rendered Ms Wigmans’ appeal nugatory or otherwise might give rise to relevant prejudice (including, posing a real risk of practical difficulty for the High Court in determining the relief to be granted in the event that the appeal succeeds), I would have had no hesitation in refusing to make the orders sought by Komlotex and Fernbrook. Instead, I would simply have vacated the orders made in March and April this year relating to the opt out and registration procedure and for the progress of the matter to mediation pending the determination of the High Court appeal.

214. However, I am not persuaded that there is any real risk that Ms Wigmans’ exercise of her right to appeal following the grant of special leave will be rendered nugatory (or again, otherwise give rise to relevant prejudice) by the making of the orders sought by Komlotex and Fernbrook. Rather, I have no doubt that it will be possible (albeit at some cost which I consider does not outweigh those factors which militate against this course) to “unscramble the egg”, so to speak, if that becomes necessary. Nor do I consider that the High Court is likely to be constrained, in any real or practical way in the determination of what relief is to be granted in the event that the appeal succeeds, by the taking of the steps contemplated by the proposed orders sought in the Komlotex motion.

215. As to the submission that the orders sought are beyond power (and inconsistent with the legislative regime), having regard to what was said in the decision of the Court of Appeal in Haselhurst, for the reasons which I have indicated above I do not accept that position. Nor do I consider that the proposed opt out regime is inconsistent with the legislative scheme relating to representative proceedings or will give rise to any insoluble conflict of interest.

216. As to the form of the proposed opt out notice, while I do not consider that it was misleading in the manner that Ms Wigmans has submitted, there have been revisions proposed which I consider adequately put at rest those of Ms Wigmans’ complaints that I have indicated above might be addressed.

217. As to the timing provided for in the orders sought, Counsel for Ms Wigmans indicated (not, it was said, in terrorem) that it was highly likely that he would be given instructions to seek leave to appeal from any decision unfavourable to the course for which Ms Wigmans here contends and sought, in effect, sufficient time to enable such an application to be made without the need for the costs of seeking a stay. That request was repeated in communications received in relation to the proposed revised opt out notice. I will take that into account in the timing set out in the orders to be made in light of these reasons, which I will fix after the parties have had an opportunity to make submissions when these reasons are published.

Orders

218. For the above reasons, I make the following orders:

1. Dismiss the Notice of Motion filed 21 April 2020 by Ms Wigmans.

2. Reserve the question of costs.

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Decision last updated: 08 May 2020