Wigmans v AMP Limited & Ors - [2020] HCATrans 52

[2020] HCATrans 052

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S317 of 2019

B e t w e e n -
MARION ANTOINETTE WIGMANS
Applicant
and
AMP LIMITED ABN 49 079 354 519
First Respondent
KOMLOTEX PTY LTD
Second Respondent
FERNBROOK (AUST) INVESTMENTS PTY LTD ACN 068 190 296
Third Respondent
Application for special leave to appeal

NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON FRIDAY, 17 APRIL 2020, AT 11.10 AM

____________________

MR J.T. GLEESON, SC: May it please the Court, I appear with MR A.M. HOCHROTH, for the applicant. (instructed by Quinn Emanuel Urquhart & Sullivan)

MS E.A. COLLINS, SC: May it please the Court, I appear with MR I.J.M. AHMED, for the first respondent. (instructed by Herbert Smith Freehills)

MR C.A. MOORE, SC: May it please the Court, I appear with my learned friends, MR G.A. DONNELLAN and MR A.N. D’ARVILLE, for the second and third respondents. (instructed by Maurice Blackburn Lawyers)

NETTLE J: Yes, Mr Gleeson.

MR GLEESON: Your Honours, this application concerns the scope of the Court’s powers and the principled approach to discretion when faced with a problem which is very prevalent in the class action matters in the courts of Australia which is the problem of competing duplicative open class actions. Your Honours, could I pause on the sense in which we use the term “duplicative”, which is that a first action has been properly commenced under section 157 of the Civil Procedure Act (NSW).

The originating process in accordance with section 161 properly identifies the group members, the claims, the relief and the common questions and then – this is the rub – then a group member without exercising any of the specific avenues within Part 10 to challenge the action decides, aided by a rival lawyer and funder, to commence its own action which mirrors the first. When I say mirrors the first, I mean in terms of CSR v Cigna, complete relief in respect to the controversy is already available in the first action.

In short, we submit that those facts raise three questions of law of general importance. Could I state those questions and then develop them? The first question is whether the court has a protective jurisdiction which cannot be sourced to any particular provision of Part 10 which empowers the court to stay the first filed action on the basis of a forward‑looking prediction that if the matter is successful the later filed duplicative action might yield a higher return for the group members. When I say higher return, that could be either on a gross or a net basis.

The Federal Court approach in GetSwift favours an inquiry into gross returns. The New South Wales court, as we will show, favours an inquiry into net returns. On either basis, our answer to that first question is no.

The second question…

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 Wigmans v AMP Limited & Ors

Details

AGLC: Wigmans v AMP Limited & Ors [2020] HCATrans 52
Case: [2020] HCATrans 52
Decision Date

CaseChat Overview and Summary

This application for special leave to appeal concerned the management of competing, duplicative class actions. The applicant, Marion Antoinette Wigmans, sought to appeal a decision of the Court of Appeal of New South Wales, which had allowed a second class action, commenced by Fernbrook (Aust) Investments Pty Ltd, to proceed alongside the applicant's earlier filed action against AMP Limited. The core of the dispute lay in how courts should approach situations where multiple class actions are initiated concerning the same controversy, and whether a court has the power to favour one action over another based on predicted future returns for group members.

The legal issues before the High Court included whether a court possesses a protective jurisdiction, independent of specific statutory provisions, to stay an earlier filed class action based on a prediction that a later filed duplicative action might yield a higher return for group members, either on a gross or net basis. Further, the court was asked to consider whether later filed duplicative actions should be presumed vexatious or oppressive and liable to be stayed unless they demonstrate a traditional juridical advantage that outweighs such presumption. Finally, the court was to determine how any power to engage in predictive assessments of likely future returns should be exercised consistently with the judicial method, particularly when differing funding models create differing incentives.

The applicant argued that the approach adopted by the Federal Court and the New South Wales Court of Appeal, which favoured an inquiry into predicted returns to determine which class action should proceed, was contrary to established legal principles. They contended that the courts should not engage in speculative exercises to predict which vehicle would achieve the best result for the class, and that the statutory scheme for class actions did not empower such an inquiry. Instead, the applicant submitted that a second-filed action should be considered prima facie vexatious or oppressive, and only allowed to proceed if it could demonstrate a traditional juridical advantage capable of assessment by the court. The respondents, however, argued that the Court of Appeal's decision was not attended by sufficient doubt, that there was no inconsistency requiring clarification, and that the grounds of appeal concerned contested factual issues. They asserted that the order of commencement of proceedings is merely one factor among many in managing competing actions and that funding arrangements, like security for costs, could legitimately be considered by the court.

The High Court granted special leave to appeal. The applicant's primary argument focused on the error in the Court of Appeal's reasoning, which was to regard it as part of the court's jurisdiction to engage in a speculative, forward-looking exercise to predict which of two matters was likely to produce more money for the plaintiffs. The applicant also pressed the point that a second-filed action, if duplicative, should be regarded as prima facie vexatious or oppressive and bear an onus of demonstrating a matter capable of assessment under the judicial method to outweigh that vexation or oppression.

Orders