JUDGE:	Nichols J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 June 2022; further mention on 18 July 2022; further submissions filed on 5, 15 and 20 July 2022
DATE OF RULING:	23 August 2022
CASE MAY BE CITED AS:	Lay v Nuix Ltd; Batchelor v Nuix Ltd; Bahtiyar v Nuix Ltd
MEDIUM NEUTRAL CITATION:	[2022] VSC 479

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PRACTICE AND PROCEDURE — Group proceedings — Multiplicity of proceedings — Competing carriage motions — Where plaintiffs in two of the proceedings jointly seek consolidation, joint representation and stay of the other proceeding — Whether consolidation in the best interests of group members — Whether joint representation in the best interests of group members — Supreme Court Act 1986 (Vic) s 33ZF — Wigmans v AMP Ltd (2021) 270 CLR 623, Perera v GetSwift Ltd (2018) 263 FCR 92, Klemweb Nominees Pty Ltd v BHP Group Ltd (2019) 369 ALR 583, Fuller v Allianz Australia Insurance Ltd (2021) 65 VR 78 — Consolidation granted — Stay granted — One firm to be appointed as solicitors on the record.

GROUP PROCEEDINGS — Costs — Application for a Group Costs Order — Costs to be calculated as a percentage of the amount of any award or settlement recovered — Whether proper evidentiary basis to make the proposed GCO — Judicial discretion in open-textured legislation — Principles to be applied — Supreme Court Act 1986 (Vic) s 33ZDA — Allen v G8 Education Ltd [2022] VSC 32, Fox v Westpac; Crawford v ANZ [2021] VSC 573, Boganv The Estate of Peter John Smedley (Deceased) [2022] VSC 201 — Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff in the Lay Proceeding	Mr R May	Shine Lawyers
For the Plaintiff in the Batchelor Proceeding	Mr LWL Armstrong QC Mr M Guo	Phi Finney McDonald
For the Plaintiff in the Bahtiyar Proceeding	Mr WAD Edwards Mr E Batrouney	Banton Group
For Nuix	Mr M Darke SC Mr J Entwisle	Gilbert + Tobin
For Macquarie Capital and Macquarie Group Limited	Mr R Craig QC Ms J Findlay	Herbert Smith Freehills
For the Fourth, Fifth and Sixth Defendants in the Bahtiyar Proceeding	Mr S Marks QC Ms M Szydzik	Jones Day
For the Seventh Defendant in the Bahtiyar Proceeding	Dr C Parkinson SC	Corrs Chambers Westgarth
For the Eight Defendant in the Bahtiyar Proceeding	Ms N Gollan	Watson Mangioni Lawyers
For the Ninth Defendant in the Bahtiyar Proceeding	Mr G Rich SC Ms A Campbell	Arnold Bloch Leibler

TABLE OF CONTENTS

Part A: Introduction and background............................................................................................…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Lay v Nuix Ltd

Details

AGLC: Lay v Nuix Ltd; Batchelor v Nuix Ltd; Bahtiyar v Nuix Ltd [2022] VSC 479
Case: [2022] VSC 479
Decision Date: 23 August 2022

CaseChat Overview and Summary

The parties in Lay v Nuix Ltd were engaged in a dispute concerning two separate group proceedings. The plaintiffs in each proceeding sought various forms of relief against Nuix Ltd. The case came before the Supreme Court of Victoria, which was required to decide on two primary issues. Firstly, whether it was in the best interests of the group members to consolidate the two proceedings, and secondly, whether it was appropriate to grant a stay of the second proceeding and appoint a single firm of solicitors to represent all plaintiffs. The court considered relevant statutory provisions and precedents, including the Supreme Court Act 1986 (Vic) and cases such as Wigmans v AMP Ltd, Perera v GetSwift Ltd, Klemweb Nominees Pty Ltd v BHP Group Ltd, and Fuller v Allianz Australia Ltd. The court found that consolidation and joint representation would indeed be in the best interests of the group members, and thus granted the consolidation and stay, while also appointing one firm as solicitors on the record.

In addition to these issues, the plaintiffs sought a Group Costs Order (GCO) to determine the costs as a percentage of any award or settlement. The court examined whether there was a proper evidentiary basis to make such an order and considered the judicial discretion available under the Supreme Court Act 1986 (Vic). The court referred to Allen v G8 Education Ltd, Fox v Westpac; Crawford v ANZ, and Bogan v The Estate of Peter John Smedley (Deceased) in its analysis. Ultimately, the court concluded that the plaintiffs had not provided sufficient evidence to support the proposed GCO and dismissed the application. This decision highlights the importance of a robust evidentiary foundation when seeking such orders and underscores the broad discretion held by the court in interpreting open-textured legislation.

In summary, the court granted the consolidation and stay of the second proceeding, appointed a single firm of solicitors to represent all plaintiffs, and dismissed the application for a GCO. These outcomes reflect the court's balanced approach to managing group proceedings, ensuring both efficiency and fairness for the parties involved.

Orders