Stack v AMP Financial Planning Pty Limited (No 2)

[2021] FCA 1479

FEDERAL COURT OF AUSTRALIA

Stack v AMP Financial Planning Pty Limited (No 2) [2021] FCA 1479

File number:

VID 489 of 2020

Judgment of:

BEACH J

Date of judgment:

25 November 2021

Catchwords:

CORPORATIONS – representative proceeding – practice and procedure – de-classing action – s 33N of the Federal Court of Australia Act 1976 (Cth) – s 33N(1)(c) – whether representative proceeding an efficient and effective means of dealing with claims – commonality concerning claims under ss 961B, 961J, 961L and 965 of the Corporations Act 2001 (Cth) – nature of AMP authorised representatives – relationship with AMP licensees – personal advice – breach of fiduciary duty – sufficient commonality – balance between individual issues and common issues – application refused

Legislation:

Australian Securities and Investments Commission Act 2001 (Cth) ss 12CB, 12GF

Corporations Act 2001 (Cth) ss 917E, 961B, 961J, 961L, 961M, 965

Federal Court of Australia Act 1976 (Cth) ss 33C, 33N, 33Q

Cases cited:

Australian Securities and Investments Commission v AMP Financial Planning Pty Ltd (No 2) (2020) 377 ALR 55

Earglow Pty Ltd v Newcrest Mining Ltd (2015) 230 FCR 469

Division:

General Division

Registry:

Victoria

National Practice Area:

Commercial and Corporations

Sub-area:

Commercial Contracts, Banking, Finance and Insurance

Number of paragraphs:

243

Date of hearing:

11 October 2021

Counsel for the Applicants:

Mr A Martin SC with Mr T Bagley, Mr E Olivier and Mr B O’Connor

Solicitors for the Applicants:

Piper Alderman and Shine Lawyers

Counsel for the Respondents:

Ms W Harris QC with Ms E Bathurst

Solicitor for the Respondents:

King & Wood Mallesons

ORDERS

VID 489 of 2020

BETWEEN:

NIGEL PETER STACK

First Applicant

MELITA ANNA WINTERTON

Second Applicant

JOHN LESLIE BROTTON (and another named in the Schedule)

Third Applicant

AND:

AMP FINANCIAL PLANNING PTY LIMITED (ACN 051 208 327)

First Respondent

CHARTER FINANCIAL PLANNING LIMITED (ACN 002 976 294)

Second Respondent

HILLROSS FINANCIAL SERVICES LIMITED (ACN 003 323 055) (and others named in the Schedule)

Third Respondent

ORDER MADE BY:	BEACH J
DATE OF ORDER:	25 NOVEMBER 2021

THE COURT ORDERS THAT:

1.The respondents’ application under s 33N(1) of the Federal Court of Australia Act 1976 (Cth) be dismissed.

2.The parties’ costs of and incidental to such application be their costs in the cause.

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

REASONS FOR JUDGMENT

BEACH J:

1. In this representative proceeding the applicants and group members seek compensation for commissions and premiums paid in relation to financial products acquired on the advice of their financial advisers, who were at the relevant time authorised representatives of the first to third respondents.

2. The respondents have applied for an order under s 33N(1) of the Federal Court of Australia Act 1976 (Cth) that the proceeding no longer continue as a representative proceeding. They have invoked s 33N(1)(c) as the condition upon which they rely to trigger the power to de-class.

3. In support of their s 33N(1)(c) argument the respondents say that the applicants’ central…