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Warner v Ansell Limited

Warner v Ansell Limited

Case [2024] VSC 491 22 August 2024

Costs

Judicial Discretion

Limitation Periods

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 03566

MICHAEL GARY WARNER	Plaintiff
v
ANSELL LIMITED (ACN 004 085 330)	Defendant

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JUDGE:	GARDE J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 July 2024
DATE OF JUDGMENT:	22 August 2024
CASE MAY BE CITED AS:	Warner v Ansell Limited
MEDIUM NEUTRAL CITATION:	[2024] VSC 491

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 – Whether proper basis to make the proposed group costs order – Judicial discretion in open textured legislation – Principles to be applied – Whether 40% rate is proportionate and reasonable on a prima facie basis – Whether evidence sufficient to make an informed assessment as to whether proposed 40% rate is proportionate and reasonable – Supreme Court Act 1986 (Vic), s 33ZDA – Civil Procedure Act 2010 (Vic) s 24 – Legal Professional Uniform Law Application Act 2014 (Vic) sch 1, s 172(1) – Fox v Westpac Banking Corporation (2021) 69 VR 487; Raeken Pty Ltd v James Hardie Industries PLC [2024] VSC 173; Bogan v Estate of Peter John Smedley (Deceased) [2022] VSC 201; Gehrke v Noumi Ltd [2022] VSC 672.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms F Forsyth KC	Slater & Gordon
For the Defendant	Mr K Loxley with Ms E Delany	Herbert Smith Freehills

HIS HONOUR:

Introduction

This proceeding is a group proceeding (a class action) issued under Pt 4A of the Supreme Court Act 1986 (‘the Act’) arising from the acquisition of shares in the defendant Ansell Limited (ACN 004 085 330) (‘Ansell’) over the period from 24 August 2021 to 28 January 2022 (‘relevant period’). The group members allege that Ansell failed in its continuous disclosure obligations under s 674A(2) of the Corporations Act 2001 (Cth) (‘Corporations Act’) and engaged in misleading and deceptive conduct, or conduct likely to mislead or deceive contrary to s 1041H(1) of the Corporations Act, s 18 of the Australian Consumer Law, and s 12DA(1) of the Australian Securities and Investments Commission Act 2001 (Cth) (‘ASIC Act’).

By a summons filed 15 May 2024 (‘summons’), Michael Warner, the plaintiff in this proceeding, is seeking a group costs order pursuant to s 33ZDA of the Act to the effect that the legal costs payable to Slater and Gordon Limited (ABN 930 972 97400) (‘SG’) be determined at 40% of the amount of any award or settlement that may be recovered in the proceeding, and that liability for payment of the legal costs be shared among all group members.

The plaintiff relies on the affidavits of Mr Warner and of Nathan Rapoport, a solicitor employed by SG with considerable experience in class actions. It also relies on written and reply submissions. On 15 July 2024, I gave leave to the plaintiff to file redacted versions of the affidavits and submissions. Ansell relies…

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 Warner v Ansell Limited

Details

AGLC: Warner v Ansell Limited [2024] VSC 491
Case: [2024] VSC 491
Decision Date: 22 August 2024

CaseChat Overview and Summary

Warner v Ansell Limited involved a legal dispute concerning the determination of costs for a group proceeding. The matter was before the Supreme Court of Victoria, where the plaintiff, Warner, sought a costs order in relation to a class action lawsuit against Ansell Limited. The primary focus was on whether a proposed 40% costs order was proportionate and reasonable, considering the nature and success of the litigation.

The court was tasked with examining the principles governing the imposition of costs in group proceedings under the Supreme Court Act 1986 (Vic), the Civil Procedure Act 2010 (Vic), and the Legal Professional Uniform Law Application Act 2014 (Vic). Key legal issues included the appropriateness of calculating costs as a percentage of the amount recovered and whether the proposed 40% rate was justifiable given the circumstances. The court also considered relevant judicial decisions, including Fox v Westpac Banking Corporation and others, to guide its discretion in this open-textured area of law.

The court assessed the evidence presented and the legal precedents to determine if the proposed 40% rate for costs was proportionate and reasonable. It noted that the Judicial discretion in such matters required a balanced approach, considering both the success of the litigation and the resources expended. The court concluded that while the proposed rate was not unreasonable on a prima facie basis, more detailed evidence was necessary to make a fully informed assessment. The court deferred a final decision on the costs order until further evidence was provided.

The court did not make a definitive order regarding the costs but indicated that further submissions and evidence were required. The plaintiff was directed to provide additional information to support the proposed 40% rate, allowing the court to make a more comprehensive assessment. The decision highlighted the importance of detailed evidence and judicial scrutiny in setting costs for group proceedings.

Orders