Perera v GetSwift Ltd

In the case of Perera v GetSwift Ltd, the Federal Court of Australia was presented with three overlapping securities class actions against the same respondent. The actions were brought by different promoters, and the court was tasked with resolving the issue of multiplicity. The legal issues involved determining whether the court should intervene to prevent the multiplicity of proceedings, whether a "declassing" order should be made, and whether a permanent stay of two of the proceedings should be granted. The court also considered the advantages of a funding model linking risk and return to funders by reference to costs incurred, as well as proposals for reducing legal costs and the likely return to group members.

The court's reasoning involved a consideration of the circumstances which had led to the rise of competing securities class actions, and a comparative analysis of the proceedings, including their proposals for reducing legal costs and likely return to group members. The court noted that while the promoters of class actions could initially exercise a choice of forum, it was highly undesirable for the response to one court taking active steps to exercise discipline and control over securities class actions to result in an attempt to obtain an advantage by commencing actions in different courts. The court found that a continuation of duplicative proceedings would amount to an abuse of process, and that equity should intervene to enjoin parties to prevent multiplicity. The court also found that a "declassing" order should be made under s 33N(1) or s 33ZF of the Federal Court of Australia Act 1976 (Cth), and that a permanent stay of two of the proceedings should be granted.

The court's orders included facilitating the stay of two of the proceedings and the continuation of one open class proceeding. The court also directed the provision of a draft opt out notice and fixed a hearing at which time an opt out notice would be approved. Additionally, the court made orders setting out the precise terms of the common fund order. The final orders included a requirement for the applicant to file and serve a statement of claim, for the respondents to file and serve a defence, and for the applicants to serve a copy of a proposed opt out notice and a draft common fund order. The matter was listed for a case management hearing, and leave was granted to certain parties to intervene at the hearing.

In conclusion, the court found that the continuation of duplicative proceedings would amount to an abuse of process, and that equity should intervene to enjoin parties to prevent multiplicity. The court granted a permanent stay of two of the proceedings and directed the provision of a draft opt out notice and a draft common fund order. The court also made orders facilitating the interlocutory progression of the proceedings and setting out the precise terms of the common fund order.