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Lidgett v Downer EDI Ltd

Lidgett v Downer EDI Ltd

Case [2023] VSC 574 27 September 2023

Class Actions

Consolidation of Proceedings

Costs

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
GROUP PROCEEDINGS LIST

S ECI 2023 01835

JUSTINE LIDGETT	First Plaintiff
CAMERON LIDGETT	Second Plaintiff
v
DOWNER EDI LIMITED (ACN 003 872 848)	Defendant

S ECI 2023 03645

KAJULA PTY LTD (ACN 065 474 713)	Plaintiff
v
DOWNER EDI LIMITED (ACN 003 872 848)	Defendant

S ECI 2023 03646

JOWENE PTY LIMITED (ACN 001 714 585) ATF BIRO CITER SOUVENIRS PTY LIMITED PENSION FUND	Plaintiff
v
DOWNER EDI LIMITED (ACN 003 872 848)	Defendant

S ECI 2023 03647

TIMOTHY HUI CHONG TEOH	First Plaintiff
PETER HERMANN ECKARDT	Second Plaintiff
V
DOWNER EDI LIMITED (ACN 003 872 848)	Defendant

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JUDGE:	DELANY J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 August 2023
DATE OF RULING:	27 September 2023
CASE MAY BE CITED AS:	Lidgett v Downer EDI Ltd; Kajula Pty Ltd v Downer EDI Ltd; Jowene Pty Ltd v Downer EDI Ltd; Teoh v Downer EDI Ltd
MEDIUM NEUTRAL CITATION:	[2023] VSC 574

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PRACTICE AND PROCEDURE — Group proceedings — Multiplicity of proceedings — Where plaintiffs in three competing proceedings jointly seek consolidation — Consolidation consistent with overarching purpose in Civil Procedure Act 2010 (Vic) and r 9.12 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) — Applications granted — Traditional Values Management Ltd (in liq) v Taylor [2012] VSC 299 applied.

PRACTICE AND PROCEDURE — Group proceedings — Multiplicity — Where four open class group proceedings commenced against same defendant — Three competing proceedings consolidated — Carriage dispute — Comparative experience of legal teams — Risk of duplicated costs where two law practices involved — Funding and available resources — Circumstances and characteristics of lead plaintiffs — Competing applications finely balanced — Demonstrated track record of practitioners and parties in consolidated proceeding gives greater confidence that best interests of group members will be advanced — Requirement to seek to give effect to the overarching purpose — Consolidated proceeding to be preferred — Kajula proceeding stayed — Civil Procedure Act 2010 (Vic), ss 7, 8, 9, Supreme Court Act 1986 (Vic), s 33ZF — Lay v Nuix Ltd [2022] VSC 479, Perera v Getswift Ltd (2018) 263 FCR 92, Stallard v Treasury Wine Estates Ltd [2020] VSC 679, Dillon v RBS Group (Australia) Pty Ltd (2017) 252 FCR 150 considered.

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 — Tender process between competing law firms — GCO at 21% granted — Reflects lowest market price available to fund proceedings — Supreme Court Act 1986 (Vic), s 33ZDA — Fox v Westpac [2021] VSC 573, Mumford v EML Payments Ltd [2022] VSC 750 considered.

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APPEARANCES:	Counsel	Solicitors
For the plaintiffs in S ECI 2023 01835 (Mr and Mrs Lidgett)	Ms R Doyle SC with Mr R May	Maurice Blackburn
For the plaintiff in S ECI 2023 03645 (Kajula Pty Ltd)	Mr C…

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 Lidgett v Downer EDI Ltd

Details

AGLC: Lidgett v Downer EDI Ltd; Kajula Pty Ltd v Downer EDI Ltd; Jowene Pty Ltd v Downer EDI Ltd; Teoh v Downer EDI Ltd [2023] VSC 574
Case: [2023] VSC 574
Decision Date: 27 September 2023

CaseChat Overview and Summary

Lidgett and other plaintiffs brought proceedings against Downer EDI Ltd in relation to alleged defective carriages. The matter came before the court to determine whether the proceedings should be consolidated with other related proceedings, and to decide the costs of the group proceeding. The plaintiffs in three of the proceedings sought consolidation, while the fourth proceeding, the Kajula proceeding, opposed consolidation. The court was required to decide whether consolidation was consistent with the overarching purpose of the Civil Procedure Act 2010 (Vic) and the relevant Supreme Court rules, and whether a Group Costs Order should be made.

The court found that consolidation was consistent with the overarching purpose of the Civil Procedure Act and the relevant Supreme Court rules. The court noted that the lead plaintiffs in the consolidated proceeding had a demonstrated track record of managing group proceedings and advancing the best interests of group members. The court also found that the comparative experience of the legal teams, the risk of duplicated costs, and the funding and available resources all supported consolidation. The court concluded that the consolidated proceeding was preferable because it provided greater confidence that the best interests of group members would be advanced. The Kajula proceeding was stayed.

The court made a Group Costs Order, setting the costs at 21% of the amount of any award or settlement recovered. The court found that this percentage reflected the lowest market price available to fund the proceedings and was consistent with previous cases. The court considered the tender process between the competing law firms and found that the 21% GCO was appropriate.

The court made orders consolidating the Lidgett proceeding with two other proceedings, staying the Kajula proceeding, and making a Group Costs Order of 21%.

Orders