Perera v GetSwift Limited (No 2)

Case [2018] FCA 909


FEDERAL COURT OF AUSTRALIA

Perera v GetSwift Limited (No 2) [2018] FCA 909

File number: NSD 226 of 2018
NSD 440 of 2018
NSD 580 of 2018
Judge: LEE J
Date of judgment: 15 June 2018
Catchwords:

COSTS – resolution of costs applications following orders made to permanently stay two of three representative proceedings – where orders for costs sought by respondents in respect of the resolution of a multiplicity dispute – where orders are sought by an applicant in one proceeding against a non-party to that proceeding – where orders sought in respect of the successful representative party’s application for injunctive relief against an unsuccessful representative applicant

REPRESENTATIVE PROCEEDINGS – power to award costs against group members – proper construction of s 43(1A) of the Federal Court of Australia Act 1976 (Cth)

Legislation:

Federal Court of Australia Act 1976 (Cth), Pt IVA, ss 33ZF, 37M(3), 43, 43(1), 43(1A)

Federal Court Rules 2011, Div 9.2

Cases cited:

Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52

Webb v GetSwift Limited [2018] FCA 783

Perera v GetSwift Limited [2018] FCA 732

Dymocks Franchise Systems (NSW) Pty Ltd v Todd [2004] UKPC 39; [2004] 1 WLR 2807

Date of hearing: 8 June 2018
Registry: Sydney
Division: General Division
National Practice Area: Commercial and Corporations
Sub-area: Corporations and Corporate Insolvency
Category: Catchwords
Number of paragraphs: 47
Counsel for the Applicant: Mr WAD Edwards
Solicitor for the Applicant: Squire Patton Boggs
Counsel for the Respondents: Mr M Darke SC and Mr A Shearer
Solicitor for the Respondents: Quinn Emanuel Urquhart & Sullivan
Counsel for the Applicants in NSD440/2018: Mr G Rich SC and Dr B Kremer
Solicitor for the Applicants in NSD440/2018: Corrs Chambers Westgarth
Counsel for the Applicant in NSD580/2018: Mr D Collins QC and Ms J McDonald
Solicitor for the Applicant in NSD580/2018: Phi Finney McDonald

ORDERS

NSD 226 of 2018
BETWEEN:

DWAYNE CAVAN SHANAHAN PERERA

Applicant

AND:

GETSWIFT LIMITED

First Respondent

JOEL MACDONALD

Second Respondent

JUDGE:

LEE J

DATE OF ORDER:

15 JUNE 2018

THE COURT ORDERS THAT:

1.By 9 am on 19 June 2018, the parties provide to the Associate to Justice Lee orders reflecting these reasons together with such other orders arising from the case management hearing in proceedings NSD 580 of 2018 on 15 June 2018.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

NSD 440 of 2018
BETWEEN:

SHAUN MCTAGGART

First Applicant

SAMANTHA MCTAGGART
Second Applicant

AND:

GETSWIFT LTD

First Respondent

JOEL MACDONALD

Second Respondent

BANE HUNTER

Third Respondent

JUDGE:

LEE J

DATE OF ORDER:

15 JUNE 2018

THE COURT ORDERS THAT:

1.By 9 am on 19 June 2018, the parties provide to the Associate to Justice Lee orders reflecting these reasons together with such other orders arising from the case management hearing in proceedings NSD 580 of 2018 on 15 June 2018.

Note:    Entry…

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AGLC
Perera v GetSwift Limited (No 2) [2018] FCA 909
Case
[2018] FCA 909
Decision Date

CaseChat Overview and Summary

The case of Perera v GetSwift Limited (No 2) involved a series of class actions filed against GetSwift and other respondents. The Federal Court was tasked with resolving costs applications arising from the resolution of the multiplicity of proceedings. The respondents sought an order that the applicants in the three class actions pay the costs of resolving the multiplicity dispute, and that one applicant pay the costs of intervening in two of the proceedings. In response, the applicant in one proceeding sought costs from another applicant and a third party for various pre-hearing actions.

The legal issues before the court included the proper construction of section 43(1A) of the Federal Court of Australia Act 1976 (Cth) in relation to awarding costs against group members in representative proceedings, and the application of the usual rule that costs follow the event. The court considered whether the respondents should be exposed to the costs of an inter se fight between the applicants, given that the multiplicity of proceedings had caused vexation and oppression to the respondents. The court also considered whether an order for costs could be made against a non-party to a proceeding, and whether an order for costs could be made in respect of an unsuccessful application for injunctive relief.

The court determined that the usual rule that costs follow the event should apply, and that the respondents should not bear the costs of the inter se dispute between the applicants. The court held that an order for costs could be made against a non-party to a proceeding, and that an order for costs could be made in respect of an unsuccessful application for injunctive relief. The court also held that section 43(1A) of the Federal Court of Australia Act 1976 (Cth) allowed for the award of costs against group members in representative proceedings.

ORDERS:
The court ordered that the parties provide orders reflecting these reasons by a specified date, and that the orders be entered in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. By 9 am on 19 June 2018, the parties provide to the Associate to Justice Lee orders reflecting these reasons together with such other orders arising from the case management hearing in this proceeding on 15 June 2018.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 23 May 2018, for reasons explained in Perera v GetSwift Limited [2018] FCA 732 (principal judgment), I made orders permanently staying two of three class actions that had been filed claiming relief against GetSwift and other respondents. These reasons assume familiarity with the principal judgment. One of the orders made in the unstayed class action, the Webb Proceeding, was to list a case management hearing on 8 June 2018 for the purpose, among other things, of approving an opt out notice in the Webb Proceeding. At that case management hearing, I also foreshadowed that I would deal with any cost issues arising from my orders staying the Perera Proceeding and the McTaggart Proceeding. I propose, in the Webb Proceeding, following a further hearing on 15 June 2018, to deliver separate reasons in relation to a range of matters which arise concerning the future conduct of the Webb Proceeding. These reasons are directed to a narrower issue, that is, the cost consequences that flow from the principal judgment. There are two categories of costs applications which require determination. The first category is costs applications made by the respondents as follows:(a)that the applicants in the Webb Proceeding, the Perera Proceeding and the McTaggart Proceeding pay all the respondents’ costs of and incidental to the resolution of issues concerning the multiplicity of proceedings (including all associated hearings) which were the subject of the judgment in the principal judgment; and(b)an order that Mr Webb pay the respondents’ costs of and incidental to applications made by Mr Webb on 9 April 2018 to intervene in the Perera Proceeding and the McTaggart Proceeding (Intervention Application). The second category is a series of costs applications made by Mr Perera in the Perera Proceeding by interlocutory application dated 30 May 2018, seeking an order against Mr Webb for:(a)costs incurred by Mr Perera as a representative party in the Perera Proceeding prior to the resolution of the multiplicity dispute;(b)Mr Perera’s costs of: (i)the Intervention Application;(ii)the multiplicity dispute; and(iii)the application made by Mr Webb for an injunction or s 33ZF orders (being an application the subject of my reasons in Webb v GetSwift Limited [2018] FCA 783). In relation to each of the costs orders sought against Mr Webb, Mr Perera also seeks, in the alternative, that costs be paid by a third party, being Therium Capital Management Limited (TCM). I will deal with each of these individual applications for costs separately below.B THE APPLICATIONS BY THE RESPONDENTSB.1 Costs of the Multiplicity Hearing The respondents refer to, and rely upon, the observations I made during the hearing on 13 April 2018 that the multiplicity dispute was to be at the cost of the applicants and that the respondents had been caught in “an internecine fight between applicants”. In short, the respondents contend they should not be exposed to any costs of an inter se fight between those suing them, particularly given the finding that multiple proceedings occasioned vexation and oppression to the respondents. Given a permanent stay was granted, it was submitted that the usual rule that costs follow the event should be applied.

Ratio Decidendi

Legal Principle Established

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