Perera v GetSwift Limited (No 2)

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.