Wigmans v AMP Limited & Ors

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.