Wigmans v AMP Ltd

[2019] NSWSC 603

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Wigmans v AMP Ltd; Fernbrook (Aust) Investments Pty Ltd v AMP; Wileypark Pty Ltd v AMP Ltd; Georgiou v AMP Ltd; Komlotex Pty Ltd v AMP Ltd [2019] NSWSC 603
Hearing dates:	6 and 7 December 2018
Date of orders:	23 May 2019
Decision date:	23 May 2019
Before:	Ward CJ in Eq
Decision:	(1) Pursuant to r 28.5 of the Uniform Civil Procedure Rules 2005 (NSW), order that proceeding 2018/310118 (the Komlotex proceeding) be consolidated with proceeding 2018/309329 (the Fernbrook proceeding) and that the consolidated proceeding be known as Komlotex Pty Ltd v AMP Limited (Consolidated proceeding). (2)   Order that the plaintiff in the Komlotex proceeding and the plaintiff in the Fernbrook proceeding (together, the joint plaintiffs) be, respectively, the first plaintiff and the second plaintiff in the Consolidated proceeding. (3)   Order that the joint plaintiffs be represented by one firm of solicitors (being, until further order, the current solicitors for the plaintiff in the Komlotex proceeding, Maurice Blackburn). (4)   Order that the costs to date of each of the Komlotex proceeding and the Fernbrook proceeding be treated as costs in the Consolidated proceeding. (5)   Order that the joint plaintiffs have liberty to seek, on any application for approval of a settlement of the Consolidated proceeding or for approval of costs following judgment, orders for approval of the costs referred to in order 4 above. (6) Subject to the payment into Court on behalf of the joint plaintiffs of the sum of $5 million as security for the defendant’s costs (without prejudice to the defendant’s ability from time to time to seek the provision of further security) order, pursuant to s 67 and s 183 of the Civil Procedure Act 2005 (NSW) and in the inherent power of the Court, that the following proceedings be permanently stayed: (i)   2018/00145792 (Wigmans v AMP Limited); (ii)   2018/310082 (Wileypark Pty Ltd v AMP Limited); and (iii)   2018/310103 (Andrew Georgiou v AMP Limited). (7)   Reserve the question of the costs of the various motions brought by the plaintiffs in each of the proceedings referred to in order 6 above and the costs of the plaintiff in the Komlotex proceeding in respect of its notices of motion seeking a stay of the proceedings referred to in order 6 above; with a view to dealing with the question of costs on the papers. (8)   Liberty to apply on 48 hours’ notice.
Catchwords:	REPRESENTATIVE PROCEEDING – CIVIL PROCEDURE – multiplicity of proceedings – whether commencement of subsequent proceedings an abuse of process – application of case management principles – consideration of relevant factors to determine what is in best interest of overall group members
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56-58, 67, 162, 166, 171, 173, 183 and Pt 10 Corporations Act 2001 (Cth), s 1337P Evidence Act 1995 (NSW), ss 79(1), 91 Federal Court of Australia Act 1976 (Cth), ss 33N and 33ZF Uniform Civil Procedure Rules 2005 (NSW), r 28.5
Cases Cited:	Australian Securities and Investments Commission v Richards [2013] FCAFC 89 Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 Blairgowrie Trading Ltd v Allco Finance Group Ltd (in liq) (No 3) [2017] FCA 330, (2017) 343 ALR 476 Branir Pty Ltd v Wallco Pastoral Co Pty Ltd [2006] NTSC 70; (2006) 203 FLR 115 Brewster v BMW Australia Ltd [2018] NSWSC 1602 Brewster v BMW Australia Ltd [2019] NSWCA 35 Cantor v Audi Australia Pty Ltd (No 2) [2017] FCA 1042 Commissioner of State Revenue v Aidlaw Pty Ltd (No 2) [2010] VSC 405 Courtney v Medtel Pty Ltd (2002) 122 FCR 168; [2002] FCA 957 Darwalla Milling Company Pty Ltd v F Hoffman-La Roche Ltd (No 2) [2006] FCA 1388 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 Hassid v Queensland Bulk Water Supply Authority t/as Seqwater [2017] NSWSC 599 Henry v Henry (1996) 185 CLR 571; [1996] HCA 51 Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29 Inabu Pty Ltd v Leighton Holdings Ltd (No 2) [2014] FCA 911 Jeffery and Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75; [2009] HCA 43 Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 56; (1999) ATPR 41-679 King v AG of Australia Holdings Ltd [2002] FCA 1560 Kirby v Centro Properties Ltd (No 6) [2012] FCA 650 Lidden Composite Buyers Ltd (1996) 67 FCR 560; (1996) 139 ALR 549 Locking v Armtec Infrastructure Inc 2013 ONSC 331 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 McKay Super Solutions Pty Ltd (Trustee) v Bellamy’s Australia Ltd [2017] FCA 947 Melbourne City Investments Pty Ltd v Myer Holdings Ltd (2017) 53 VR 709; [2017] VSCA 187 Melbourne City Investments v Leighton Holdings Ltd [2015] VSCA 235 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 Money Max Int Pty Ltd (as trustee for the Goldie Superannuation Fund) v QBE Insurance Group Ltd [2018] FCA 1030; (2018) 358 ALR 382 Moore v Inglis (1976) 9 ALR 509 Oliver v Commonwealth Bank of Australia (No 2) (2012) 205 FCR 540; [2012] FCA 755 Perera v GetSwift Ltd [2018] FCA 732; (2018) 127 ACSR 1 Perera v GetSwift Ltd [2018] FCAFC 202 Petersen Superannuation Fund Pty Ltd v Bank of Queensland Ltd [2017] FCA 699 Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370 R v Turner [1975] QB 834 R v Uduma (2013) 115 SASR 318; [2013] SASCFC 2 Ringrow Pty Ltd v BP Australia Ltd (2003) 130 FCR 569; [2003] FCA 933 Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42 Sharma v Timminco Ltd (2009) 99 OR (3d) 260 Smith v Australian Executor Trustees Limited; Creighton v Australian Executor Trustees Limited [2016] NSWSC 17 Thirteenth Corp Pty Ltd v State [2006] FCA 979; (2006) 232 ALR 491 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 Treasury Wine Estates Ltd v Melbourne City Investments Pty Ltd (2014) 45 VR 585; [2014] VSCA 351 Vitapharm Canada Ltd v F Hoffmann-La Roche Ltd [2000] OJ No 4594 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55 Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; [1992] HCA 55 Westpac Banking Corporation v Lenthall [2019] FCAFC 34 Wigmans v AMP Ltd (No 4) [2019] NSWSC 257 Wigmans v AMP Ltd [2018] NSWSC 1045; (2018) 128 ACSR 534 Wigmans v AMP Ltd (No 3) [2019] NSWSC 162 Wigmans v AMP Ltd [2018] NSWSC 1118 Wileypark Pty Ltd v AMP Ltd [2018] FCAFC 143; (2018) 359 ALR 43 Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34
Texts Cited:	Vincent Morabito, An Empirical Study of Australia’s Class Action Regimes, Second Report: Litigation Funders, Competing Class Actions, Opt Out Rates, Victorian Class Actions and Class Representatives (Sept 2010)
Category:	Procedural and other rulings
Parties:	Marie Wigmans (Plaintiff in Wigmans proceeding) Fernbrook (Aust) Investments Pty Ltd (Plaintiff in Fernbrook proceeding) Wileypark Pty Ltd (Plaintiff in Wileypark proceeding) Andrew Georgiou (Plaintiff in Georgiou proceeding) Komlotex Pty Ltd (Plaintiff in Komlotex proceeding) AMP Limited (Defendant in all proceedings)
Representation:	Counsel: R Lancaster SC with A Hochroth and P Meagher (Plaintiff in Wigmans proceeding) D Rappoport (Solicitor) (Plaintiff in Fernbrook proceeding) A Leopold SC with W Edwards and D Fahey (Plaintiff in Wileypark proceeding) I Pike SC with J Burnett (Plaintiff in Georgiou proceeding) C Moore SC with G Donnellan (Plaintiff in Komlotex proceeding) E Collins SC with I Ahmed and E Bathurst (Defendant in all proceedings)   Solicitors: Quinn Emanuel Urquhart & Sullivan (Plaintiff in Wigmans proceeding) Slater & Gordon Limited (Plaintiff in Fernbrook proceeding) Phi McFinney McDonald (Plaintiff in Wileypark proceeding) Shine Lawyers (Plaintiff in Georgiou proceeding) Maurice Blackburn (Plaintiff in Komlotex proceeding) Herbert Smith Freehills (Defendant in all proceeding)
File Number(s):	2018/001457922018/003093292018/003100822018/003101032018/00310118
Publication restriction:	Nil

Judgment

1. HER HONOUR: Before me on 6 and 7 December 2018 were a number of interlocutory applications (referred to variously in the submissions as the multiplicity or carriage motions) brought in five sets of proceedings that have been commenced as open class representative proceedings against the defendant, AMP Limited (AMP); together with an application, not opposed by AMP, for the consolidation of two of the sets of representative proceedings (to which I will refer as the Komlotex and Fernbrook proceedings, respectively) (the consolidation motion). In essence, the respective multiplicity motions seek a determination, in light of the multiplicity of proceedings arising out of substantially the same factual background, as to which one (or more) of the representative proceedings should continue; and on what basis.

2. In practical terms, and assuming consolidation of the Komlotex and Fernbrook proceedings, there are now four competing sets of representative proceedings (the Wigmans, Komlotex/Fernbrook, Wileypark and Georgiou proceedings), as referred to in more detail below.

3. The dispute between the respective parties as to which one (or more) of the representative proceedings should be permitted to continue was characterised by AMP in its written submissions as more a dispute between service providers than one concerning the interests of the parties and group members and by Ms Wigmans, colloquially, as a “beauty parade” or auction process. Certainly, the process has had its unedifying aspects (insofar as I am being called upon to make an assessment of the comparative skills and experience, or “track record”, of the respective legal teams). Nevertheless, the present applications before me fall to be dealt with as part of the ordinary case management processes of the Court. The suggestion (see Ms Wigmans’ submissions in chief) that this process has led to an “unseemly debacle” apt to lead the administration of justice into disrepute does not in my opinion sufficiently take into account the need for close consideration to be given to the comparative merits of the respective proceedings (and, in particular, the proposed funding models put forward by the competing representative plaintiffs) with a view to selecting the most suitable vehicle(s) to prosecute group members’ claims. Nor can it be accepted that there will be no ultimate benefit to the group members, going forward, from the focus that has been paid by the respective legal teams in the course of these applications on issues such as the ambit of the claims to be made against AMP (and, hence, the scope of the relevant representative class). That process has, in fact, already led to clarification of aspects of various of the parties’ allegations and to a refinement (and in the case of the Komlotex proceeding substantial revision) of the respective funding proposals; matters which ultimately must be in the interest of the group members. Moreover, one would hope that, as the principles governing case management of multiple and overlapping representative proceedings, and their application, come more frequently to be considered both in the Federal Court of Australia (the Federal Court) and in this Court (including at appellate level), the need for a lengthy and elaborate process of the kind here undergone will surely diminish. In that regard, there is substance to Komlotex’ submission that at present there is a process of working through the applicable principles to deal with overlapping representative proceedings of this kind.

4. Quite properly, AMP broadly takes no position on the present applications other than to emphasise certain factors put forward as relevant, as a matter of fairness, to its position as defendant (such as the adequacy of the various funding proposals on the issue of security for its costs) and to argue forcefully that only one proceeding should now be permitted to continue (and that this should be in a manner that will determine with finality the claims of all group members), with the remaining sets of proceedings to be permanently stayed.

5. AMP submits (and I agree) that the stay of all but the preferred vehicle for the prosecution of group member claims is consistent with the overriding purpose mandated by s 56 of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act) of the just, quick and cheap resolution of the real issues in dispute. In that regard, AMP says that each of the representative proceedings concerns essentially the same factual matters and that each, in large part, is brought on behalf of the same group members (both of those propositions being disputed, to a lesser or greater extent, by one or more of the representative plaintiffs – see below from [234]). AMP submits that permitting all proceedings to continue: would not be in the interests of group members; would necessarily involve vexation and oppression to AMP; and would needlessly require the diversion of court resources “in a manner that could only be of commercial benefit to the litigation funders and solicitors that promote these proceedings”.

6. With one qualification (see Wileypark’s submissions), the representative plaintiffs in the respective proceedings do not cavil with the first two of those propositions, it being broadly agreed between them that only one set of representative proceedings should be permitted to continue. The qualification to which I here refer is that, while Wileypark accepts in its written submissions that it is inappropriate that the multiple open class representative proceedings “constituted as they are” should continue in that form (by which I understand it to mean as open class proceedings) (see its submissions at [2]), and hence that overlapping group members “ultimately" cannot remain in multiple proceedings (see its submissions at [10]), it does not accept that it would be appropriate for its own proceeding to be permanently stayed in the event that its proceeding were not to be the one identified as the vehicle to go forward for the prosecution of the representative claims. Wileypark’s position, as I understand it, is that if it is not chosen as the sole representative proceeding to go forward as an open class action then its proceeding nevertheless should not be stayed and should be permitted to continue (whether as a second open class proceeding or as a large closed class proceeding) (see T 61.12ff) – something that it maintains would be in AMP’s interest as well as in the interest of its group members. Its argument in this regard is that to do otherwise would be to interfere with its group members’ freedom of contract (see T 60.41ff). None of the other representative plaintiffs supports such a course (and AMP argues strongly against it).

Background

7. The commencement of the competing representative proceedings followed disclosures made during evidence given by AMP executives at the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (Royal Commission) on 16 and 17 April 2018, after which AMP’s share price fell sharply. That evidence has given rise to allegations that AMP contravened its continuous disclosure obligations and statutory prohibitions on misleading or deceptive conduct by failing to disclose to the market that it had deliberately charged its customers fees for ongoing financial advice and related services where no such services were provided; and had misled the regulator, Australian Securities and Investments Commission (ASIC), as to the nature and extent of that misconduct over an extended period. There is also now a claim of unconscionable conduct in relation to those matters in one of the proceedings (the Wigmans proceeding).

8. On 23 April 2018, media announcements were made by various legal firms that they were investigating a potential class action against AMP; namely, by those now acting in each of: the Wigmans proceeding, Quinn Emanuel Urquhart & Sullivan (Quinn Emanuel); the Georgiou proceeding, Shine Lawyers (Shine); and the Fernbrook proceeding, Slater & Gordon Limited (Slater & Gordon).

9. From as early as 9 May 2018, through up until 7 June 2018, the respective sets of representative proceedings now before the Court were commenced. The first in time (albeit only by a matter of hours), the Wigmans proceeding, was commenced in this Court in the commercial list. The remaining sets of proceedings were commenced in the Federal Court and subsequently transferred to this Court (see further below). The respective proceedings are presently at different stages in terms of their preparation for hearing, the most advanced being the Wigmans proceeding, which has been case managed since its commencement with the usual expedition in the commercial list (a matter on which Ms Wigmans places no little weight on the present applications).

10. Various of the representative plaintiffs have indicated their intention to seek leave to amend the manner in which the existing claims are pleaded and, where that is the case, the present applications have been conducted on the basis of the foreshadowed amended claims.

11. The factual allegations in the competing proceedings (as summarised by AMP in its submissions at [7]) are allegations, in respect of alleged policies of AMP as to the payment of ongoing service fees by clients, to the effect that: AMP did not provide to some clients the services to which those fees related; AMP made misleading statements to ASIC in connection with the charging of those fees and a report in relation to those matters prepared by Clayton Utz (matters which are alleged to falsify representations made by AMP to the Australian Securities Exchange (ASX)); and that AMP’s conduct was material and should have been disclosed by AMP to the ASX as part of its ongoing disclosure obligations. It is alleged that AMP’s conduct inflated the price of its shares; and that some group members relied on the alleged representations in acquiring AMP shares. (I interpose here to note that Wileypark cavils with the proposition by AMP that there is uniformity between the factual allegations made in each of the proceedings, highlighting differences between its pleaded case and that of other representative plaintiffs (see [43], [60] and [72] of Wileypark’s written submissions in chief; and Wileypark’s submissions in reply at [26]).)

12. There is considerable overlap in the claims periods in the competing proceedings but they are not identical. In the Wigmans proceeding, the claim periods are: from 10 May 2012 to 17 April 2018 (in relation to the continuous disclosure and misleading or deceptive conduct claims) and prior to 17 April 2018 (in respect of the unconscionable conduct claim). In the remaining proceedings, the claim periods (as revised where an amended pleading has been foreshadowed and, in Wileypark’s case, to be further revised having regard to its acceptance of AMP’s submissions on the relevant limitations period) are as follows. In the Wileypark proceeding: 10 May 2012-17 April 2018 (in the case of group members who acquired AMP ordinary shares) and 7 June 2012-17 April 2018 (in the case of group members who acquired American Depositary Receipts (ADRs)). In the Georgiou proceeding: 10 May 2012-13 April 2018 (in the case of AMP ordinary shares) and 7 June 2012 - 13 April 2018 (in the case of ADRs). In the proposed Komlotex/Fernbrook proceeding: 10 May 2012-15 April 2018 (in the case of AMP ordinary shares) and 7 June 2012-15 April 2018 (in the case of ADRs).

13. Thus, in none of the representative proceedings other than the Wigmans proceeding does the claim period extend back before 10 May 2012; and it is only in the Wigmans and Wileypark proceedings that the claim period includes the period from 16 April 2018-17 April 2018 (that being the period in which the relevant disclosures were being made at the Royal Commission). The difference between the end date of 13 April 2018 in the Georgiou proceeding and of 15 April 2018 in the Komlotex/Fernbrook proceeding relates to whether the end date is the last business day before 16 April 2018 (when the relevant disclosures commenced) or the day immediately before the day those disclosures commenced (that being a Sunday).

7. After some interlocutory stoushes between the plaintiffs in the competing representative proceedings (see Wigmans v AMP Ltd [2018] NSWSC 1045; (2018) 128 ACSR 534; Wigmans v AMP Ltd [2018] NSWSC 1118, Wileypark Pty Ltd v AMP Ltd [2018] FCAFC 143; (2018) 359 ALR 43 (Wileypark v AMP)), the detail of which it is neither necessary nor particularly instructive here to recount (though I note that reference is made in some of the submissions on the present applications to certain of the parties’ conduct in that regard and I did regard that aspect of the matter as an “unseemly debacle”), orders were made by the Full Court of the Federal Court (the Full Court) on 29 August 2018, transferring to this Court each of the proceedings that had been commenced in the Federal Court.

The proceedings and present applications

15. The proceedings, and the applications now before me in each of them, may be summarised as follows.

Wigmans proceeding (2018/00145792)

16. Ms Wigmans commenced proceedings in this Court on 9 May 2018 (the Wigmans proceeding). The solicitor on the record in the Wigmans proceeding is Mr Damian Scattini of Quinn Emanuel. Mr Scattini was formerly a partner in Maurice Blackburn (the solicitors acting for Komlotex – see below).

17. By notice of motion filed 29 August 2018, Ms Wigmans seeks, relevantly, an order that each of the other four representative proceedings (referred to in the notice of motion as the “transferred FCA proceedings”):

(a)   be permanently stayed;

(b)   in the alternative, no longer continue as a representative proceeding; or

(c)   in the further alternative, continue as a closed class limited to the applicant in each of the respective transferred FCA proceedings and such persons as have, as at the date the order is made, signed a funding agreement in respect of one of the transferred FCA proceedings, provided that such persons have not also, as at that date:

(i)   retained the lawyers for the plaintiff in these proceedings to act for them in these proceedings; and/or

(ii)   signed a funding agreement in respect of these proceedings; or

(d)   in the further alternative, be stayed pending the resolution of the common questions in these proceedings.

18. By amended notice of motion filed 24 October 2018, Ms Wigmans also seeks, pursuant to s 183 of the Civil Procedure Act, a common fund order (CFO), namely an order equalising, as between group members, the funder’s costs.

Wileypark proceeding (2018/310082)

19. The second set of representative proceedings was commenced by Wileypark Pty Ltd (Wileypark) also on 9 May 2018 (but around seven hours after the Wigmans proceeding at approximately 11:00 pm) in the Federal Court (the Wileypark proceeding). The solicitor acting for Wileypark in the proceeding is Mr Tim Finney of Phi Finney McDonald (Phi Finney).

20. By amended notice of motion filed 9 November 2018, Wileypark seeks orders both as to the resolution of the multiplicity of suits and the making of a CFO. As to the former, what is sought (comparable in some respects to the orders sought in the Wigmans proceeding), is:

1.   An order in each of the Georgiou Proceeding, Wigmans Proceeding, Komlotex Proceeding and Fernbrook Proceeding (Related Proceedings), having regard to the Court’s findings as to what is in the best interests of Group Members (including those Group Members in multiple of the Related Proceedings, but who have not registered or signed litigation funding agreements with particular litigation funders):

a.   case managing that proceeding to an initial trial either alone or with any one or more of the Related Proceedings or this Proceeding; and/or

b.   closing the class of that proceeding (by limiting it only to group members who have signed litigation funding agreements with the respective funder); and/or

c.   consolidating (in whole or in part), that proceeding with any one or more of the Related Proceedings or this Proceeding, together with other incidental orders appropriate or necessary to facilitate the just conduct of the proceedings so consolidated; and/or

d.   staying (whether permanently or temporarily) that proceeding.

Georgiou proceeding (2018/310103)

21. Mr Georgiou commenced proceedings in the Federal Court, some two weeks after the first two sets of proceedings were commenced, on 25 May 2018 (the Georgiou proceeding). The solicitor acting for Mr Georgiou in that proceeding is Ms Vicky Antzoulatos of Shine.

22. By notice of motion filed 24 October 2018, Georgiou seeks orders both as to the resolution of the multiplicity of suits and the making of a CFO. As to the former, what is sought is broadly the same as that sought by Ms Wigmans:

1. Pursuant to ss 33N and 33ZF of the Federal Court of Australia Act 1976 (Cth) (FCA) and/or pursuant to ss 67, 166 and 183 of the Civil Procedure Act 2005 (NSW) (CPA) and/or pursuant to the inherent jurisdiction of the Court, each of the Wigmans proceeding, the Fernbrook proceeding and the Komlotex proceeding:

a.   be permanently stayed;

b.   in the alternative, no longer continue as a representative proceeding; or

c.   in the further alternative, continue as a closed class limited to:

i.   the plaintiff in each of the respective proceedings and such persons as have, as at the date the order is made, signed a funding agreement in respect of each of the proceedings, provided that such persons have not also, as at the date of the relevant order:

1.   retained the lawyers for the plaintiff to act for them in these proceedings; and/or

2.   signed a funding agreement in respect of this proceeding; or

d.   in the further alternative, be stayed pending the resolution of the common questions in these proceedings.

Fernbrook proceeding (2018/309329)

23. On 6 June 2018, Fernbrook (Aust) Investments Pty Ltd (Fernbrook) commenced proceedings in the Federal Court (the Fernbrook proceeding). The solicitor presently acting for Fernbrook is Mr Benedict Hardwick of Slater & Gordon.

24. As adverted to above, Fernbrook now seeks to be consolidated with the Komlotex proceeding. Mr Hardwick has deposed (see his affidavit affirmed 20 November 2018 at [13]) that, in the days following learning of the Komlotex funding proposal and Komlotex’ proposal to seek leave to amend its claim period to match that in the Fernbrook and Wigmans proceedings (i.e., 10 May 2012-15 April 2018), he formed the view that the Komlotex “no win, no fee” funding proposal (which now does not involve “a litigation funder seeking a commercial return on funds put at risk during the proceeding”) meant that, absent a very substantial difference between the legal costs of Komlotex’ solicitors (Maurice Blackburn) and the legal costs of an alternative firm, the Komlotex proposal was likely to provide better returns to group members than any funded alternatives. In other words, Mr Hardwick has deposed to having formed the view that the Komlotex proposal is superior to that of both Fernbrook and of each of the competing proceedings; and that the Komlotex funding proposal is therefore in the best interests of group members (a matter to which Komlotex points in its submissions but which others of the representative plaintiffs submit should carry no weight) (see Komlotex’ submissions in chief at [56]).

Komlotex proceeding (2018/310118)

25. Finally, Komlotex Pty Ltd (Komlotex), as trustee for Breda Sinclair Industries Superannuation Fund, commenced proceedings in the Federal Court on 7 June 2018. The solicitor on the record in this proceeding is Mr Andrew Watson of Maurice Blackburn.

26. By separate notices of motion, each filed 24 October 2018, Komlotex seeks orders in each of the other four proceedings as to the resolution of the multiplicity of suits. Komlotex does not now press for a CFO (since it is no longer proposed that a third party funder be involved in the matter) and, in light of the decision of the Full Court in Perera v GetSwift Ltd [2018] FCAFC 202 (GetSwift Appeal), Komlotex also does not now press for the alternative relief set out in prayers 2, 3 or 4 of its 24 October 2018 notices of motion, pressing only for an order that the competing proceedings be permanently stayed (prayer 1 in each of those notices of motion). Unsurprisingly, since Fernbrook supports the consolidation motion, Komlotex does not press its stay application in relation to the Fernbrook proceeding. (It cavils, however, with the criticism by Ms Wigmans in her submissions that it has ‘abandoned’ its 24 October 2018 motions or that it has been guilty of any “dilatory conduct” in that respect.)

Overview

27. The primary basis on which Ms Wigmans seeks a stay of the competing representative proceedings is that the commencement and/or continuation of those proceedings is an abuse of process. In this regard, Ms Wigmans invokes the principle that a person may not pursue multiple legal proceedings seeking the same relief against the one defendant. Ms Wigmans argues that the same principle applies in the context of representative proceedings; and submits that it will ordinarily be an abuse of process for a member of one group (here, the Wigmans group) to commence a later representative proceeding seeking the same relief against the same defendant on behalf of the same persons.

28. Ms Wigmans submits (though this is by no means accepted by the other representative plaintiffs) that none of the plaintiffs in the competing representative proceedings has identified any deficiency in the (regularly commenced and first-filed) Wigmans proceeding, nor any juridical advantage that its (or his) proceeding has over the Wigmans proceeding, so as to warrant any different conclusion.

29. Contradicting Ms Wigmans’ submission as to the absence of any identification of deficiencies in her proceeding, Mr Georgiou in his submissions has summarised the deficiencies identified by him and the other representative plaintiffs in relation to Ms Wigmans’ proceeding as being: the inclusion of an unconscionable conduct claim; the non-inclusion of a claim relating to ADRs; the extension of the relevant period to 17 April 2018; an “inexplicable rush” to serve evidence and otherwise progress the proceedings, notwithstanding that multiplicity issues had not been resolved and orders for service of evidence had not been made; the objectively higher funding commissions; the potential for the funder for the Wigmans proceeding to obtain a “windfall gain”; and an inferior projected return to group members on a variety of likely scenarios (and Mr Georgiou submits that the supervision of the Court could not be relied on to remedy all those deficiencies in the Wigmans proceeding). I deal with those criticisms of the Wigmans proceeding in due course.

30. In the alternative to her primary (abuse of process) argument, Ms Wigmans presses her claim for a stay of the competing representative proceedings on the basis of case management principles, arguing that it is in the interests of the just, quick and cheap resolution of the real issues in dispute for the Wigmans proceeding (which is further advanced in terms of preparation for mediation or an ultimate hearing) to be the one representative proceeding that is permitted to continue. That said, Ms Wigmans submits that this should be the outcome without the Court embarking upon a multifactorial “GetSwift-style” analysis.

31. In this regard, Ms Wigmans submits: that the approach envisaged by the competing plaintiffs is inconsistent with the principled exercise of judicial power; that it is unedifying for the Court to play, or be perceived as playing, the role of “entreating bids from group members to conduct the case on better terms than those offered in the Wigmans Proceeding”; that such a procedure is inimical to the just, quick and cheap resolution of group members’ claims and therefore contrary to the edict in ss 56–58 of the Civil Procedure Act; and that the Court’s statutory supervisory powers in respect of representative proceedings under Pt 10 of the Civil Procedure Act, in particular ss 171, 173 and 183, provide adequate and appropriate mechanisms to ensure that a representative plaintiff conducts the proceeding in the best interests of group members (including through the Court’s control over any funding commission to be paid to a litigation funder on settlement or judgment).

32. Ms Wigmans submits that it is both unnecessary and inappropriate for the Court to entertain or undertake the kind of “auction” procedure contemplated by the competing representative plaintiffs and that the “unseemly debacle precipitated by the commencement of the Subsequent Proceedings ought not to be condoned or encouraged”. (The description by Ms Wigmans of the respective proceedings to date as an “unseemly debacle”, to the extent that it encompasses the applications for an anti-suit injunction and an anti-anti-anti-suit injunction in the Wigmans proceeding itself, is in turn the subject of criticism of Ms Wigmans’ conduct in the Wigmans proceeding – see Mr Georigou’s submissions at [4].)

33. I will return in due course to the concerns raised by the various competing plaintiffs as to the multiplicity of proceedings and by Ms Wigmans as to the process here being undertaken to deal with the multiplicity issue. While I share the view that aspects of the process involved in the comparisons made of the respective proceedings and the funding models proposed by the competing plaintiffs were indeed unedifying (in particular, as adverted to above, the comparison of the “track record” and abilities of the respective law firms to conduct litigation of this kind and the criticism by various of the law firms of the others in this regard), I do not accept that a multifactorial analysis of what is likely to be the most suitable vehicle through which group members’ claims may be advanced, in the best interests of group members, does not involve the principled exercise of judicial power. (Nor did the Full Court suggest otherwise in GetSwift Appeal. See also the discussion by the Court of Appeal in Brewster v BMW Australia Ltd [2019] NSWCA 35 (Brewster Appeal) from [96]-[102], albeit in a different context, as to the submission there made that the making of a CFO on an interlocutory basis would not be an exercise of judicial power.) Rather, what is here required (once the abuse of process argument has been determined) is an assessment of the most appropriate remedial response to the competing class actions, having regard to the interests of group members (and the need to ensure fairness to the defendant).

34. The two bases (i.e., as an abuse of process and on case management principles) on which a stay is sought by Ms Wigmans of the competing proceedings reflect, in essence, the distinct sources of power on which the stay of competing representative proceedings was granted (and later upheld) in the Federal Court in the GetSwift proceedings (see below at [44]ff), the first instance and appeal decisions in those proceedings understandably being the subject of much focus on the present applications.

35. If Ms Wigmans’ proposition that a multifactorial analysis should not here be undertaken is not accepted (and I interpose here to note that I do not accept it), then Ms Wigmans argues that the multiplicity issue should not be resolved based on a “simplistic” analysis of which proceeding would return more to group members at a given level of settlement or judgment (which, it is submitted, would promote a “race to the bottom”). Ms Wigmans argues that such a race cannot be expected to advance the interests of group members in achieving the maximum possible settlement or judgment sum) (see submissions at [11]). Rather, Ms Wigmans advances several other matters in support of the conclusion that the Wigmans proceeding is the superior vehicle for the prosecution of group members’ claims.

36. First, that the Wigmans proceeding adopts the funding structure which best aligns the financial incentives of those conducting and funding the proceedings with the interests of group members in obtaining as high a recovery as possible (reliance here being placed on the analysis carried out by Professor Michael Perino in his two reports that were only provisionally admitted by me at the hearing of these applications, over the objections of Wileypark, as Exhibits A and B – see from [131] below). Second, that the Wigmans proceeding is brought on behalf of more group members than any of the competing proceedings (a proposition that is challenged by Wileypark) and offers an additional cause of action (the unconscionable conduct claim) to the competing proceedings (a proposition broadly accepted but discounted as a relevant factor by the other representative plaintiffs). Third, that the Wigmans proceeding: was commenced first; has been prosecuted with appropriate diligence by those conducting it; is now at a more advanced stage of preparation than any of the subsequent proceedings and, subject to the opt-out and registration process, is ready to proceed to mediation, Ms Wigmans noting that the issue as to security for costs is already resolved in the Wigmans proceeding, where the sum of $5 million was deposited in Court by her funder on 1 June 2018 (I note here that this factor is now effectively mirrored by the undertaking proffered in the Komlotex proceeding). Fourth, that the Wigmans proceeding is being conducted by appropriately experienced solicitors and counsel, and is backed by an experienced litigation funder with the means to ensure that the proceedings will be conducted properly (a feature, I note, that is put forward by each of the competing plaintiffs in respect of his or its legal team and/or funder, in support of his or its own proceeding). Fifth, that in each of the other representative proceedings, unresolved issues in relation to the provision, or adequacy, of adverse costs cover suggests that there will need to be further interlocutory steps to test the sufficiency of the proposed arrangements, with consequent delay (though this issue cannot now be said to arise in relation to the Komlotex proceeding). Finally, Ms Wigmans says that the conduct of the other representative proceedings to date “does not inspire confidence” that any of those proceedings is as likely as the Wigmans proceeding to promote the just, quick and cheap resolution of the proceeding.

37. As can be seen from the above, there is a degree of overlap between, on the one hand, the abuse of process basis on which a stay is primarily sought by Ms Wigmans of the other representative proceedings and, on the other hand, the reasons put forward by Ms Wigmans as to why, on case management principles (and even if there be a multifactorial analysis), the Wigmans proceeding is the “superior vehicle” for the claims brought against AMP.

38. Each of the plaintiffs in the competing representative proceedings (Fernbrook in effect largely adopting Komlotex’ submissions on the multiplicity motions) contends: that neither the commencement nor the continuation to date of the subsequent proceedings constitutes an abuse of process; that the emphasis placed by Ms Wigmans on her proceeding being first in time (and further advanced in terms of preparation) is misplaced; and that, on a multifactorial analysis, its or his own proceeding is the one which should be permitted to continue. Each also points to aspects of the other competing representative proceedings which it is contended make those proceedings an inferior vehicle for the prosecution of group members’ claims against AMP.

39. In summary, each of the plaintiffs in the representative proceedings places emphasis on different factors by reference to which it is submitted that that plaintiff’s proceeding is superior to that of the others.

40. Ms Wigmans, as already noted, emphasises: what might be called the “first mover advantage”; the additional (unconscionable conduct) cause of action in her proceeding; the extended definition of group members (to 17 April 2018; a date matched only in the Wileypark proceeding); the “superior progress” in the Wigmans proceeding; and the perceived advantage of a staged funding model in terms of incentivisation of the funder to achieve the highest recovery for group members.

27. Komlotex emphasises its “no win, no fee” funding model and the experience of its solicitors, Maurice Blackburn (and, in particular, Mr Watson of that firm), in the conduct of representative proceedings of this kind (in particular, emphasising the “niche” comprised by securities class action proceedings), as well as the certainty, going forward, of its funding structure (since Komlotex no longer seeks a CFO and is prepared to match the present security for costs arrangements in the Wigmans proceeding).

28. Wileypark emphasises the size of its group in terms of the institutional group members who have already signed funding agreements with its funder (IMF Bentham Limited) (IMF)) and, in particular, the “informed choice” that this is said to represent in terms of the signing up of “repeat” institutional group members; and the provision of the expertise of its funder in the analysis of financial data (and, provision of other project management services) “at no cost” to group members. (Against the last of those matters is the argument put by others of the representative plaintiffs that the cost of those services is built into the funder’s commission and that such expertise will not obviate the need for independent expert evidence in due course.)

29. Finally, Mr Georgiou emphasises the “overall package” put forward by his solicitors (Shine) and funder( Augusta Ventures Limited (Augusta)), including that the estimate as to legal costs has been vetted by a costs consultant and comprises the lowest rates of those proposed by the respective firms of solicitors (which is estimated by Shine to result in the highest recovery for group members) and that (since those responsible for the matter within Augusta are qualified solicitors) its proposal effectively places control of the decision-making in the hands of solicitors (who, it is noted, unlike funders owe paramount obligations to the Court in their capacity as officers of the Court).

The GetSwift proceedings

44. As there was much emphasis on the decisions both at first instance and on appeal in the GetSwift proceedings, it is convenient at the outset briefly to consider what was there said as to matters of relevance to the applications presently before me.

45. In the GetSwift proceedings, there were three competing open class representative proceedings in which the cases proposed to be advanced were found by the primary judge to be substantially the same. At first instance (Perera v GetSwift Ltd [2018] FCA 732; (2018) 127 ACSR 1) (GetSwift), Lee J concluded that it would be an abuse of process for more than one of those proceedings to continue and ordered that two of the proceedings be permanently stayed (see at [306]ff; [345]-[347]). On appeal, the Full Court (Middleton, Murphy and Beach JJ) did not consider it necessary to determine the question whether the continuation of competing proceedings was an abuse of process, concluding that there was power to stay one or more competing class actions pursuant to the Court’s inherent case management powers (see GetSwift Appeal at [121]ff; [136]). Relevantly, the Full Court also noted (at [33]) that the Court “would not condone such a complex, elaborate and expensive exercise in other cases when the issue of competing class actions needs to be dealt with” and that questions of the kind there raised “require to be dealt with less elaborately and more efficiently”.

46. In obiter, the Full Court considered that: the mere existence of competing class actions does not give rise to an abuse of process (GetSwift Appeal at [145]-[148]; [154]); it is not an abuse of process for competing class actions to continue “if all but one are closed and overlap is eliminated” (GetSwift Appeal at [149]) or otherwise “where the duplication of group membership is eliminated” (GetSwift Appeal at [151]); the continuation of non-overlapping class actions is not an abuse (GetSwift Appeal at [153]); the commencement of a subsequent bona fide set of representative proceedings prior to the Court giving substantive directions in existing but overlapping representative proceedings does not of itself establish an abuse of process (GetSwift Appeal at [150]); prima facie, it is vexatious or oppressive to bring a second proceeding where an existing proceeding is on foot and the subject matter of those proceedings is the same or substantially overlaps, though it has also been recognised that the fact that the parties are not identical, or the relief sought is different, does not necessarily disentitle relief under this principle (GetSwift Appeal at [155]); and that an open class representative proceeding is not, or does not become, an abuse of process merely because a duplicative proceeding is subsequently commenced offering purportedly better costs and funding terms (GetSwift Appeal at [156]).

47. Of the remedial options available to manage overlapping open class proceedings (which include not only a permanent stay but also orders for: consolidation, class closure to eliminate the existence of overlapping group members in two or more competing class actions, joint hearings (the so-called “wait and see” approach), or a temporary stay), the Full Court: considered that consolidation should generally only be used where there is agreement between the applicants, the funders and the solicitors (GetSwift Appeal at [51]); doubted whether there was power to “declass” one or more proceedings in order to resolve multiplicity pursuant to s 33N or s 33ZF of the Federal Court of Australia Act 1976 (Cth) (the equivalent provisions in this jurisdiction being ss 166 and 183 of the Civil Procedure Act) (GetSwift Appeal at [64]-[65]); said that orders “closing the class” were an appropriate discretionary response in McKay Super Solutions Pty Ltd (Trustee) v Bellamy’s Australia Ltd [2017] FCA 947 (Bellamy’s) due to the very large number of signed up group members in both competing proceedings in that case and the fact that that case was the first time in which the Court had utilised the class closure approach (such that the parties could not have known that the Court would discourage bookbuilding prior to the issue of proceedings in that and subsequent decisions) (GetSwift Appeal at [62]ff); and said that the “wait and see” approach adopted by Foster J in Cantor v Audi Australia Pty Ltd (No 2) [2017] FCA 1042 was an appropriate discretionary response in that case because the primary judge had declined to find that allowing the continuation of two class actions would, at that stage of the proceeding, unduly oppress the respondent or that it was productive of undue costs, confusion or delay (GetSwift Appeal at [62]ff).

48. The Full Court observed, in this context, at [66] that where “there are multiple open class proceedings, numerous group members signed up in each of the proceedings to different funding arrangements, and the prospect of a common fund application being made in each of the proceedings, it may be desirable that clarity be injected sooner rather than later as to the proceedings to go forward and their constitution”; and said that it was obvious that permitting the three overlapping class actions in that case to continue would increase costs and that it was open to the primary judge to find that it would be against the broader interests of justice if this were to occur. (A number of those features present themselves on the present applications albeit with certain differences, namely that there are multiple open class proceedings; in some (but not all) of those proceedings there are numbers of group members who have signed up to different funding arrangements; and there is the prospect of a CFO application in some, though again not in all, of the proceedings.)

49. The Full Court noted a number of features which it considered supported the exercise of the discretion in that case to order a permanent stay, including that: it was unnecessary to allow the continuance of duplicative class actions to permit access to justice as the group members in each case were the same; neither of the stayed parties had expressed a willingness to proceed as a closed class rather than being stayed; there was no evidence that the interests of the applicants or of any group members would be best served by more than one open class action progressing; and it was in the interests of the applicants and the group members to have their claims advanced in the “most potentially beneficial vehicle”.

50. The Full Court concluded that the primary judge had the power, on multiple bases, permanently to stay two of the three competing proceedings in order to avoid a multiplicity of proceedings ventilating the same claims (see at [118]-[157]). The Full Court nevertheless recognised (see at [165]) that different cases and facts would call for different responses and said (at [274]) that:

… there is no one right answer to the case management questions that arise when dealing with competing class actions. There cannot be a ‘one size fits all’ and different judges will take a different view of some of the incommensurable and conflicting considerations that may arise. It should also be kept in mind that there is no ‘silver bullet’ solution to the case management problems of competing class actions and each of the ‘solutions’ can be said to have some or other problem.

51. At [277], the Full Court expressed the view that, where there is a multiplicity of competing class actions, the focus should be “less on achieving the lowest possible costs and funding charges in any selection process” and more on selecting the proceeding with a funding and costs model likely best to motivate the solicitor and funder “to work assiduously to achieve the best outcome for the applicant and group members and to take responsible risks in that regard”.

52. At [278], the Full Court went on to say that:

… the single most important determinant of the net recovery achieved by group members is not the quantum of legal costs but the amount of the settlement or judgment achieved, and where the settlement or judgment is large the legal costs are usually not material to net recovery. The Court should be astute to select the proceeding with the legal team that is most likely to achieve the largest settlement or judgment, i.e. the most experienced and capable. We accept that differentiating between legal firms or solicitors will often be difficult but the Court should not dodge that question if there is a basis for differentiation.

53. At [279]-[280], the Full Court emphasised the importance of strongly discouraging a rush to the Court in large and complex class proceedings (because it carries the consequent risk of insufficient due diligence and the commencement of unmeritorious, or at least weak, cases), noting that:

… recently a number of securities class actions have been issued very speedily following a share price collapse. Wileypark [Wileypark Pty Ltd v AMP Limited [2018] FCAFC 143] is a good example of this. … Unless the hasty filing of such cases is effectively discouraged even those solicitors or funders who wish to take an appropriately cautious approach are likely to be dragged into the same practice. That is so because the first action filed is likely to obtain a ‘first mover’ advantage in terms of book building and, once one action is filed, other solicitors or funders are pressed to speedily follow or they may not be included in the mix when the Court considers the competing proceedings.

It may be time for the Court to consider a procedure, in relation to securities class actions at least, such that upon the filing of the first proceeding the Court orders a standstill in that proceeding for, say, 90 days to allow a reasonable time for other solicitors or funders to undertake a proper due diligence. In order to reduce the incentive to rush to the Court, and to reduce any incentive to speedily follow another party that does so, any book building that occurs during the standstill period should be given no weight by the Court. We note that a 90 day standstill period is imposed under s 77z-1 of the Private Securities Litigation Reform Act 1995 in the USA.

Differences between the competing representative proceedings in the present case

54. The differences between the competing representative proceedings presently before me (by reference to which one or other of the representative plaintiffs maintains that its proceeding has a juridical advantage or that others pose a juridical disadvantage) are broadly as to the relevant group members and the causes of action sought to be advanced on behalf of group members. Those differences in essence are: the inclusion of the unconscionable conduct claim in the Wigmans proceeding (not elsewhere reproduced – that being a conscious forensic decision on the part of the competing representative plaintiffs’ lawyers) it being said by Ms Wigmans that this offers a different theory of loss and damage to market-based causation (T 13.20)); the inclusion of a claim in respect of shares acquired off-market or the acquisition by ADR’s (first expressly raised in the Fernbrook proceeding though proposed to be mirrored elsewhere and said by Ms Wigmans, but disputed by other plaintiffs, already to be encompassed in her existing pleading); and the inclusion in the Wileypark proceeding of a claim arising out of the receipt by AMP of legal advice to the effect that its conduct was not lawful (a claim that Ms Wigmans again says, but which is also disputed, is already encompassed in her commercial list statement). (See below at [89]; [234]ff.)

Proposed funding models

Wigmans proceeding

55. The funder for the Wigmans proceeding is Burford Asia Pty Ltd (Burford), a subsidiary of Burford Capital UK Ltd (Burford Capital). Under the proposed funding terms, Burford is to: pay legal costs and disbursements; meet any adverse costs order; and provide security for costs. All of Quinn Emanuel’s professional fees are to be met by Burford (thus, the firm is not at risk in respect of its costs) but Quinn Emanuel will not be entitled to any uplift on its professional fees in the event of a successful outcome (thus, it is not undertaking any part of the legal work on a conditional basis). On a successful resolution of the proceedings, Burford is to be paid (subject to Court approval) the legal costs and disbursements it has incurred, plus a maximum commission on a sliding scale, dependent on when resolution of the proceedings is achieved, of: 10% of the net resolution sum if the proceedings resolve on or before 30 June 2020; 15% of the net resolution sum if the proceedings resolve between 1 July 2020 and 30 June 2021; and 20% if the proceedings resolve after 1 July 2021. Burford will forego approximately $300,000 attributable to past interlocutory disputes (T 14.20).

56. Ms Wigmans notes that the proposed CFO in the Wigmans proceeding provides that the Court has ultimate power to fix the funder’s commission in such lower amount than is proposed in the terms of the CFO that the Court considers reasonable and points to the acknowledgement by Burford that it contemplates that “in determining what is a reasonable funding commission, the Court may have regard to the commissions or alternative funding models reasonably and credibly proposed by other litigation funders in connection with the Wigmans Conduct Application” (see the affidavit affirmed 7 November 2018 of the managing director of Burford Capital, Mr Craig Arnott, at [38]).

Komlotex (and, if consolidated, Komlotex/Fernbrook) proceeding

57. For Komlotex, as adverted to above, Maurice Blackburn now proposes to conduct the proceeding without a litigation funder, on a “no win, no fee” basis. On a successful resolution of the proceedings (but provided the resolution sum exceeds an identified figure), Maurice Blackburn will (subject to Court approval): charge an uplift fee of 25% on its professional fees; and recover the costs of obtaining “after-the-event” (ATE) insurance (the cost of which it estimates at $1.25 million).

58. Further, as part of the arrangement reached with Fernbrook for consolidation with the Fernbrook proceeding, if the proceedings are consolidated: Maurice Blackburn will make payments of $250,000 each to Fernbrook’s solicitors (Slater & Gordon) and to its funder (Therium Litigation Finance (Australia) Limited (Therium)) in the amount of $500,000; Fernbrook and Komlotex will apply for orders approving payment from the resolution sum of up to $350,000 in respect of legal costs and disbursements incurred by Slater & Gordon and/or Therium in conducting the Fernbrook proceeding prior to consolidation; and Maurice Blackburn will indemnify Therium against any adverse costs order made against Therium in the Fernbrook or Wigmans proceedings, and will indemnify Therium against any liability it has to indemnify Fernbrook (see affidavit of Fernbrook’s solicitor, Mr Hardwick of 20 November 2018, referring to a Deed of Cooperation setting out those arrangements). Only the second of those amounts (i.e., the sum of up to $350,000), is to be the subject of an application for payment out of the ultimate resolution sum.

Wileypark proceeding

59. The funder for the Wileypark proceeding is IMF. Under the proposed funding terms, IMF is to: pay Phi Finney’s reasonable disbursements (but not Phi Finney’s professional fees – thus, Phi Finney will conduct the proceedings on a conditional basis); meet any adverse costs order; and provide any security for costs.

60. On a successful resolution of the proceeding, and subject to Court approval, IMF is to be entitled to payment of its expenses together with a maximum commission based on the lesser of: 10% of the net claim proceeds (the resolution sum net of costs); or 2.5 times the amount of “Multiple Expenses” (i.e., the disbursements paid by IMF) capped at $4.5 million (not inclusive of insurance costs); and Phi Finney will be entitled under the proposed funding terms to a 25% uplift on its professional fees incurred from 9 November 2018 (see the affidavit affirmed 12 November 2018 of Timothy Finney at [55]). The funding proposal imposes a cap on the amount of costs that the solicitors may recover from any resolution sum. The “Solicitor Costs Cap” is expressed as the higher of: the “Estimated Professional Fees Total” plus 10%, plus any Uplift Fee payable in respect of that amount or 10% of the Resolution Sum. (The IMF cap is described in submissions as a “hard cap”, the Phi Finney as a soft cap (in the sense of being “not a cap”) (see T 127).)

61. In oral submissions, Wileypark indicated that Phi Finney would not seek to recover any costs associated with bookbuilding (T 64.43ff) and that no cost of the multiplicity motions would be passed on to group members (T 71.35).

Georgiou proceeding

62. The funder for the Georgiou proceeding is Augusta. Under the proposed funding terms, Augusta is to: be responsible for paying legal costs and disbursements (up to an identified limit which can be varied); meet any adverse costs order; and provide any security for costs. 50% of Shine’s professional fees for project investigation and 25% of Shine’s professional fees for the proceeding (excluding project investigation) will be incurred on a conditional fee basis (see the affidavit of Vicky Antzoulatos sworn 6 November 2018 at p 3). Thus, Augusta will not pay Shine for a portion of its professional fees, but those amounts will be sought to be recovered by Shine out of the net claim proceeds on a successful resolution of the proceeding.

63. On a successful resolution of the proceeding, Augusta is to be entitled to repayment of the credit it has deployed in the proceeding (the “deployed credit”), together with a commission based on the lesser of: 8% of the net claim proceeds; 1.2 times the amount of “deployed credit” in the event the matter is resolved within 12 months after the proceeding was filed; 1.5 times the “deployed credit” in the event the matter is resolved within 12-24 months after the proceeding was filed; and 1.8 times the “deployed credit” in the event the matter is resolved more than 24 months after the proceeding was filed. Further, on a successful outcome of the proceedings, Shine is entitled to a 25% uplift on its professional fees that were incurred on a conditional basis (i.e., the 50% project investigation fees and 25% other professional fees).

62. Mr Georgiou’s solicitor has deposed that the deployed credit cannot exceed $6,604,418 (being the “total funding to be provided”) (see the affidavit sworn 6 November 2019 of Ms Antzoulatos at p 3), unless the funder agrees to a variation of that limit.

Abuse of process argument

65. It is convenient first to deal with Ms Wigmans’ abuse of process argument, before considering her argument that the competing representative proceedings should be stayed, without undertaking any multifactorial analysis, by reference to the operation of case management principles; before turning, finally, to the multifactorial analysis that (contrary to her submissions), I propose to undertake of the comparative benefit to group members of the respective proceedings.

66. The relevant principles applicable in considering an application to stay a proceeding on the basis that its commencement (or continuation) constitutes an abuse of process are well known and are not in dispute between the parties. What is disputed is the application of those principles in the context of representative proceedings; in particular, where the legislature has contemplated the possibility of more than one proceeding (as is apparent from the relevant provisions in relation to representative proceedings in both the Federal Court Act and the Civil Procedure Act).

67. In summary, as Ms Wigmans notes, proceedings have been held to be an abuse of process where: the Court’s processes are invoked for an illegitimate or improper purpose (Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34; Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42); the use of the Court’s processes is unjustifiably oppressive to one of the parties or vexatious (Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55); and the use of the Court’s processes in the manner contemplated would bring the administration of justice into disrepute (Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 (Walton v Gardiner)). As Ms Wigmans also notes, the categories of abuse of process are not closed (Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28; GetSwift Appeal (at [144]); Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48) and it has been recognised that the doctrine of abuse of process is fluid and adaptable (Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27; Jeffery and Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75; [2009] HCA 43).

Ms Wigmans’ position

68. Ms Wigmans points to the following instances of abuse of process as having particular relevance in the circumstances of the present applications: the bringing of two proceedings where one will lie, such as where the plaintiff bringing the second proceedings may obtain complete relief in the first (Moore v Inglis (1976) 9 ALR 509; Henry v Henry (1996) 185 CLR 571; [1996] HCA 51 (Henry v Henry); Thirteenth Corp Pty Ltd v State [2006] FCA 979; (2006) 232 ALR 491; Lidden Composite Buyers Ltd (1996) 67 FCR 560; (1996) 139 ALR 549; Branir Pty Ltd v Wallco Pastoral Co Pty Ltd [2006] NTSC 70; (2006) 203 FLR 115; Commissioner of State Revenue v Aidlaw Pty Ltd (No 2) [2010] VSC 405); the commencement of proceedings for the predominant purpose of generating income for a legal practitioner (Treasury Wine Estates Ltd v Melbourne City Investments Pty Ltd (2014) 45 VR 585; [2014] VSCA 351; Melbourne City Investments v Leighton Holdings Ltd [2015] VSCA 235) or generating income for a litigation funder (Melbourne City Investments Pty Ltd v Myer Holdings Ltd (2017) 53 VR 709; [2017] VSCA 187 (Melbourne City Investments v Myer)); and the commencement of ordinary inter partes proceedings by a person who has not opted out of a representative proceeding (when the opt-out time has passed) against the same defendant and dealing with substantially the same subject matter as the representative proceeding (Oliver v Commonwealth Bank of Australia (No 2) (2012) 205 FCR 540; [2012] FCA 755 (Oliver v CBA)).

69. Ms Wigmans identifies, in particular, the following characteristics of representative proceedings: that the proper purpose of such representative proceedings is not limited to the vindication of the substantive rights of the plaintiff, but also involves “laying the groundwork” for the vindication of the substantive rights of the group members, through the determination of common questions; that, where a representative proceeding has been commenced, the substantive rights of a group member may be vindicated in that proceeding without the need for the group member to commence its own subsequent proceeding; and that a representative proceeding is, by its very nature, a “commercial enterprise” through which the lead plaintiff, group members, solicitors and (if there is one) litigation funder advance, by use of the Court’s processes, the shared purpose of vindicating group members’ rights in order to obtain some financial benefit for each of them (referring to GetSwift at [341]-[343]; [17]-[18])).

70. Having regard to those characteristics, and the legislative regime provided for in Pt 10 of the Civil Procedure Act, Ms Wigmans maintains that an abuse of process will arise where: a group member in an open class action (here, the Wigmans proceeding) subsequently commences, as representative plaintiff, another open class action on behalf of the same, or substantially the same, group members as the first-filed class action; the claim(s) of the representative plaintiff and the group members in the subsequent class action may adequately be vindicated in the first-filed class action; the first-filed class action is an appropriate vehicle for the determination of the common issues and issues of commonality raised therein at an initial trial; and the subsequent class action is “essentially duplicative” of the first-filed class action (in that there are no significant differences in the scope, additional causes of action or material variations in the case theories proposed to be advanced, and there is otherwise no legitimate juridical advantage to group members in vindicating their claims through the subsequent class action rather than the first-filed class action).

71. Ms Wigmans submits that, in the circumstances postulated above, the subsequent proceeding is not necessary for the vindication of the plaintiffs’ substantive rights, nor is it necessary in order to lay the groundwork for the enforcement of the substantive rights of other group members; and, hence, that the subsequent proceeding does not fulfil the proper purpose of a representative proceeding. Thus, she submits, it should be inferred that the only purpose advanced by the subsequent proceeding is the purpose of the litigation funder and/or solicitors promoting the proceeding in pursuing financial benefit by use of the Court’s processes. The competing representative plaintiffs cavil with this proposition (see, in particular, Fernbrook’s submissions that, when considering the purpose for which a proceeding is commenced in the context of considering whether it is an abuse of process, the focus must be on the predominant purpose of the plaintiff, reference here being made to Melbourne City Investments v Myer at [50]) and that, even if consideration is given to the purpose of a plaintiff’s solicitors, there is no basis on the evidence to find that the only purpose, or the predominant purpose, for which Fernbrook’s proceeding was commenced, was to pursue financial benefit for the solicitors, let alone the funder. (It must surely, however, be accepted that it is unlikely that any litigation funder or solicitor, other than one conducting litigation on a purely pro bono basis, is not expecting some financial benefit from so doing.)

72. Ms Wigmans argues that the commencement and/or continuation of the subsequent class action in the above circumstances constitutes an abuse of process, submitting that the subsequent proceeding: is likely to impact adversely on the progression of the claims of group members through the first-filed proceeding; is contrary to the overriding purpose in s 56 of the Civil Procedure Act and increases costs for group members (who would likely ultimately have to bear those costs through any resolution of their claims); is vexatious and oppressive upon the defendant; and thus “undermines and brings into disrepute the administration of justice”.

73. Ms Wigmans submits that an argument of this kind (i.e., that the commencement of proceedings, after the regular commencement of an open class proceeding, in which the subsequent plaintiff seeks essentially the same relief and where that proceeding offers no juridical advantage to the first-filed proceeding) was not advanced to the Federal Court in the GetSwift proceedings (either at first instance or on appeal) and is not foreclosed by the respective judgments in those proceedings.

74. Ms Wigmans notes that (at [150] in GetSwift Appeal) the Full Court cited, with apparent approval, the decision in Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 56; (1999) ATPR 41-679 (Johnson Tiles) (at [11]-[16]), where Merkel J considered it relevant to consider whether substantive directions had been made in the first-filed representative proceeding in determining whether subsequent representative proceedings should be characterised as an abuse of process. Ms Wigmans says that, on that approach, each of the Georgiou, Fernbrook and Komlotex proceedings (though she accepts this would not include the Wileypark proceeding) should be considered an abuse of process, since each of those proceedings was commenced after substantive directions had been made (on 18 May 2018) in this Court for the progress of the Wigmans proceeding. (I pause here to note that what Merkel J said in Johnson Tiles at [16] was that “prima facie, the commencement of a bona fide representative proceeding prior to the Court giving substantive directions […] in an existing but overlapping representative proceeding will not, of itself, be vexatious and oppressive”. His Honour’s reference to the giving of substantive directions, as I read it, was there putting into a temporal context the question of abuse of process (i.e., the point at which any abuse of process would be seen as having arisen).)

75. In the present context, the significance of the making of what are said to have been procedural directions on 18 May 2018 in the Wigmans proceeding is said by Komlotex not to carry any weight, noting that the relevant directions in Johnson Tiles were as to the giving of notice to group members (i.e., at a time before the conclusion of the opt-out regime) (see T 40.33ff).

76. Ms Wigmans accepts that, in the context of a multifactorial comparison, “undue” weight should not be placed on the mere fact of filing first as a proxy for efficiency or competence (noting that in GetSwift Appeal the Full Court found that the primary judge was correct in giving little weight to the relative priority in the commencement of the competing proceedings – see at [170]), but she nevertheless maintains that the fact of filing first is still relevant in this context (citing Ball J in Smith v Australian Executor Trustees Limited; Creighton v Australian Executor Trustees Limited [2016] NSWSC 17 (Smith v Australian Executor Trustees) (at [42])).

77. Ms Wigmans submits that any concerns to the effect that rewarding the first in time proceeding may lead to “important strategic decisions and analytical work [being] performed hastily, resulting in ‘poorly thought through originating applications and pleadings’” (see Lee J in GetSwift) are unwarranted in the present case. (However, I interpose to note that the proposition that, in a particular case, a concern against encouraging a “race to the courtroom” is not well founded says nothing to address policy concerns as to the effect of such an incentive in other cases in future.

78. In particular, Ms Wigmans submits that there are other safeguards against the risk of a race to the courthouse (referring in this regard to the professional obligations of legal practitioners to act responsibly in the preparation of their client’s case and to ensure that it is adequately and properly pleaded). It is said that it would be unreasonable to criticise Ms Wigmans for commencing proceedings promptly in circumstances where group members’ claims stretch back beyond the potential limitation period such that, with every day that passed, claims of potential group members would be barred. Ms Wigmans further argues that any perceived undesirability of encouraging a race to the courthouse must be balanced against the policy considerations in favour of resolving multiplicity of overlapping class actions through an abuse of process analysis rather than the multifactorial approach adopted in GetSwift (referring to the matters set out at [64] of her outline of submissions in chief).

79. (Pausing here, while all competing representative plaintiffs disavowed any suggestion that the lawyers acting for their counterparts would act otherwise than in accordance with their professional obligations, all also placed emphasis, to a greater or lesser extent, on features of one or other of the funding proposals that it was said would give rise to incentives so to do, which they submitted for policy reasons should not be encouraged.)

80. Ms Wigmans argues that none of the subsequent proceedings has articulated the case against AMP in a way that is claimed to be superior to the Wigmans proceeding (a proposition disputed by the competing representative plaintiffs – in particular, Wileypark), noting that two of the subsequent proceedings (the Komlotex and Georgiou proceedings) have been amended to adopt the “superior features” of the Wigmans proceeding (namely, the adoption in both of those proceedings of the class period commencement date in the Wigmans proceeding, and, in the Georgiou proceeding, the adoption of substantial parts of the allegations in the Wigmans proceeding concerning the identity of relevant officers of AMP). Ms Wigmans places emphasis on her unconscionable conduct claim, which is said to give a material juridical and forensic advantage in the claim against AMP.

81. Ms Wigmans submits that the conclusion that subsequently commenced representative proceedings seeking the same relief as that sought in an earlier regularly commenced proceeding will ordinarily be an abuse of process is underscored by the provisions of Pt 10 of the Civil Procedure Act, noting that these provide “ample” remedies for a group member who considers that a representative proceeding is not being prosecuted efficiently and in that group member’s interests (including: seeking to take over the conduct of the proceeding from the representative plaintiff, and objecting to or making submissions about the appropriate amounts of legal costs and funding commission that may be deducted from any recovery). It is submitted that Parliament’s intention is that group members avail themselves of those provisions, rather than seeking to commence their own representative proceedings on behalf of the represented group. Ms Wigmans further notes that there is also the opportunity for group members to opt out if they do not wish to participate in the group proceeding and to pursue their own proceedings (whether individually or with other persons who opt out of the Wigmans proceeding).

Competing representative plaintiffs’ position

82. The competing representative plaintiffs argue that Ms Wigmans’ abuse of process contentions are contrary to authority (having been rejected both as a matter of principle and as a matter of public policy), emphasising the observations of the Full Court in GetSwift Appeal at [279] (set out above at [53]), and submitting that, consistent with earlier authority, no advantage should flow to the first-filed proceeding, as that would encourage a rush to the courthouse (see in this regard the observations of Murphy J in Petersen Superannuation Fund Pty Ltd v Bank of Queensland Ltd [2017] FCA 699 (Petersen)).

83. There was much debate as to whether the extended claim periods are likely to yield productive claims for any group members, or materially to increase aggregate group member claims (see for example Mr Georgiou’s submissions at [36]; Komlotex’ submissions at [16] and submissions in reply at [50]), which I consider in due course (see, for example, [247]ff below). Similarly, there was debate as to the proposition that the Wigmans proceeding has any juridical advantage in terms of the causes of action pleaded, which I consider later in these reasons (see [234]ff below).

84. The competing representative plaintiffs argue that the observations in GetSwift Appeal were not made in a circumstance divorced from any consideration of whether a second in time proceeding might be an abuse of process; rather, the “first in time” factor was of no weight because the second in time proceeding is not an abuse of process (see the analysis in GetSwift Appeal at [135]-[157]) and that, were it otherwise, the question of who was first could not be ignored and hence the two issues are interrelated (see for example the Komlotex submissions at [14]; T 32ff).

85. Reference is made to the reasoning of the Full Court in GetSwift Appeal, and in particular, the observations that the legislation: specifically contemplates the possibility of multiplicity of proceedings by allowing a representative party to bring proceedings on behalf of “some or all” group members and because it allows group members to opt out and pursue their own individual or representative claims; and does not evince a purpose to restrict or prevent claims involving a common issue being the subject of more than one class action, particularly given that one of the key mischiefs which the statutory regimes were enacted to prevent was a respondent facing voluminous individual claims (a far less efficient outcome); as well as to the observations that the commencement of a duplicative class action proceeding does not of itself establish any vexation, oppression or an abuse of process because the lead representatives are not the same parties, and the group members (who are not parties) “have not engaged in any conduct with respect to their rights that could sensibly be characterised as amounting to vexation, oppression or an abuse of process”.

86. It is noted that the Full Court rejected the application of the general case of abuse of process arising from the commencement of duplicative proceedings (of the sort referred to by Brennan J in Walton v Gardiner), on the footing that the applicants are different, and therefore said it could not be apposite to describe the subsequent proceedings in that case as an abuse of process at the time they were filed (see GetSwift Appeal [156]); nor could their continuation, even in the face of the superior funding of the earlier proceeding be abusive (see GetSwift Appeal [155]-[156]); and it is submitted that this reasoning does not admit of the “fine distinctions” sought to be drawn in Ms Wigmans’ submissions.

87. The other representative plaintiffs, thus, argue that the suggested resolution of the issue of multiplicity by the application of principles of “first in time” and abuse of process is at odds with the conclusion in GetSwift Appeal and earlier authorities that the proper resolution of any overlapping class actions is a case management exercise utilising the Court’s power to manage cases before it, whether in its inherent power, its express and implied power to manage cases before it in the interest of justice, or in its equitable jurisdiction.

88. As to the weight placed by Ms Wigmans on the supervisory role of the Court under Pt 10 of the Civil Procedure Act, it is submitted (see the submissions by Mr Georgiou) that: many of the mechanisms within Pt 10 require a sufficiently motivated group member to intervene in the proceedings at the relevant time (such as s 171 of the Civil Procedure Act) or take some relevant action (such as “opting out” under s 162 of the Civil Procedure Act). It is said that there is no guarantee that group members will take such steps; and that, in contrast, the Court now has the benefit of funding proposals and submissions from the plaintiffs in the four competing class actions, which provides the Court with a level of assistance in determining what is likely to be in the best interests of group members that will not be available at any later time in the proceedings.

324. I give this factor little weight. While in some cases the state of progress of the matter may be a relevant factor, I do not consider this is one of those cases.

1. Conduct of the representative plaintiffs to date

326. Again, Ms Wigmans says this factor points in favour of the Wigmans proceeding. In particular, Ms Wigmans points to matters relating to the conduct of the present applications as relevant to the diligence with which it could be expected that the respective solicitors are likely to conduct their respective proceedings should it go forward (see the affidavit evidence of Mr Scattini). Criticism is made of “tactical manoeuvring amongst Fernbrook, Wileypark and Komlotex that has plagued these applications”.

327. Ms Wigmans says that she is the only representative plaintiff that has complied fully with the orders of 10 October 2018 and she emphasises the delay of Komlotex in amending its class period pleaded (as adverted to above at [297]). Ms Wigmans points to the observation in GetSwift that delay (in the sense of tardiness) might in some circumstances “be an important, indeed decisive, consideration”.

328. In response to the assertion by Ms Wigmans of “dilatory” conduct on Komlotex’ part (arising from the fact that it filed an application dealing with multiplicity on 24 October 2018, later “abandoned” it on 16 November 2018, and did not file a new application until 22 November 2018), Komlotex notes that: it filed four identical notices of motion on 24 October 2018 (one in each of the competing proceedings); it “abandoned” only one of those motions on 16 November 2018 (being the one filed in the Fernbrook proceeding, and only because it had reached a compromise of its dispute with Fernbrook by an in-principle agreement to consolidate the two proceedings); and, in the period between 16 November and 22 November 2018, Komlotex and Fernbrook formalised the terms of their agreement. Komlotex says that it can hardly be criticised for advancing the overriding purpose by reaching agreement with Fernbrook’s solicitors to resolve part of the present dispute (and says that this also explains why Fernbrook did not file any evidence until 21 November 2018 when it filed a short affidavit in support of the consolidation motion filed on 22 November 2018).

329. Insofar as Ms Wigmans refers to Komlotex’ alleged delay in finalising its class period and in serving a pleading, Komlotex says that the fact that Maurice Blackburn engaged in investigations before satisfying itself that it was appropriate to plead the longer class period is not a matter that should be criticised; and that there was no delay in serving Komlotex’ draft pleading. Komlotex notes that it validly commenced its proceeding in the Federal Court by concise statement (a procedural step deemed by s 1337P of the Corporations Act 2001 (Cth) to have taken place in this Court) and that, although there has been no order for Komlotex to replace the concise statement in this Court, it has prepared a draft commercial list statement to be filed in the proposed Komlotex/Fernbrook proceeding in anticipation that it may be required to do so in the event that it is successful in the present applications. It is submitted that, because the competing proceedings have effectively been “on hold” pending the resolution of multiplicity question, there has been no operative delay in comparison to the other competing proceedings. Komlotex argues that there has been careful thought given to the pleading issues and rejects the suggestion that there has been delay on its part such as to warrant a conclusion that it would not prosecute the proceeding with due diligence if its proceeding matter were to go forward.

330. Mr Georgiou submits that the lawyers and funders in the Georgiou proceeding have adopted the most reasonable and transparent approach out of all the plaintiffs in the course of the multiplicity issues to date, which demonstrates the focus of acting in the best interests of group members; which he submits reflects the manner in which the Georgiou proceeding will be conducted in the future and a key reason why the Georgiou proceeding should be the preferred vehicle for the advancement of group members’ claims against AMP.

Conclusion as to eighth factor

331. I do not consider that the conduct of the respective legal/funding teams to date points in favour or against any one or more of them. All the legal teams are in my opinion suitably qualified and resourced to be in a position competently to conduct the proceedings and there is nothing to suggest that they would not do so, going forward, efficiently and in the best interests of group members.

Determination

332. As earlier noted, I have more than a little sympathy for the proposition that a “beauty parade” of the kind that has taken place involves making invidious comparisons between those involved in the litigation in the various competing proceedings. I do not, however, accept that such a process brings or is likely “to bring the administration of justice into disrepute because it encourages idiosyncratic choice in each individual case” (as Ms Wigmans has suggested).

333. Certainly, as Ms Wigmans notes, there have been many pages of written submissions, numerous affidavits and volumes of documentary evidence before me on the present applications. The criticism might well be made that the process could have been undertaken less elaborately than it has (see the Full Court in GetSwift Appeal). However, I do not accept the suggestion that the cases have not developed, or that this process does not assist the development of, a “principled framework for the resolution of multiplicity disputes” (see Ms Wigmans’ reply submissions at [1]); nor is it necessarily the case that the cost incurred in these applications will have been of no benefit to group members (at least insofar as the exercise has focussed the parties or their legal representatives’ minds on the optimum funding models to be put forward and even more relevantly, the ambit of the claims properly to be made).

334. The power to stay one or more proceedings, so as to resolve the existence of a multiplicity of proceedings, pursuant to either s 67 of the Civil Procedure Act or the Court’s inherent power to control its own processes is not in dispute. Nor is it in dispute that that power must be exercised having regard to the overriding purpose in s 56 of the Civil Procedure Act so as to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

335. AMP has emphasised that in the particular context of representative proceedings a central aim of statutory representative proceeding provisions such as those contained in Pt 10 of the Civil Procedure Act is facilitated by allowing a common, binding decision to be made in one proceeding instead of in multiple proceedings (see its submissions at [15]ff) (hence the concern to avoid unnecessary duplication of proceedings), noting that in Wileypark v AMP at [2], Allsop CJ, with whom Middleton and Beach JJ agreed, said:

As was clear, the running of multiple actions by different lawyers, with different funders was, in principle, potentially inimical to the administration of justice and, in particular, potentially inimical to the interests of group members, and potentially oppressive to AMP.

336. I further note the emphasis placed by Mr Georgiou on the fact that, on approval of settlement, the Court is required to assess what is “fair and reasonable”, which requires assessment of the settlement proposal being put before the Court without the benefit of any competing alternative proposal, noting what was said by Jessup J in Darwalla Milling Company Pty Ltd v F Hoffman-La Roche Ltd (No 2) [2006] FCA 1388 at [50]:

There will rarely, if ever, be a case in which there is a unique outcome which should be regarded as the only fair and reasonable one... So long as the agreed settlement falls within the range of fair and reasonable outcomes, taking everything into account, it should be regarded as qualifying for approval...

and Mr Georgiou’s submission in that context that there are potential benefits of considering the respective funding proposals in the context of the present applications, rather than leaving any such assessment to some later stage of the proceedings.

337. I am firmly of the view that, absent some factor making it appropriate to allow for the continuance of duplicative proceedings, it is appropriate that only one of the competing representative proceedings should be permitted to proceed and that the remaining proceedings should be stayed.

338. In that regard, there is clearly a substantial overlap (albeit not complete uniformity) in the factual allegations and group membership in each of the proceedings. There is also a substantial overlap in the causes of action being sought to be prosecuted.

339. Although the proceeding with the widest class period appears to be the Wigmans proceeding, considerable doubt has been expressed as to the claims for shareholders prior to May 2012 (but in any event other representative proceedings would be in a position to mirror those claims) and claims for those who acquired shares on 16/17 April 2018 seem to me likely to fall into a separate class or sub-set of the class so as potentially to warrant exclusion of those from the group members in the present proceeding. The ambit of the class in the Komlotex, Georgiou and Wileypark proceedings seems to be wider than the Wigmans proceedings insofar as the class in each of those proceedings includes those who purchased ADRs (though Ms Wigmans’ response to that is to assert that the definition of group member in her proceeding does encompass those persons and that she will amend if necessary to clarify that that is the case). AMP’s position on this is that, if the group definition in the Wigmans proceeding does indeed include those group members, then there is no limitation issue; if not, then a limitation point may be taken but that this should not now be determined in light of the admonition in Wardley.

340. As to the causes of action advanced in the respective proceedings Ms Wigmans maintains that the unconscionable conduct claim is a distinct juridical advantage because it offers a different causation theory of loss. The other representative plaintiffs cavil with this but say that it would be open for them to seek leave to amend to include such a claim if (now having the benefit of Ms Wigmans’ further argument on this aspect) it were considered to have merit (and AMP does not suggest that it would oppose this).

341. It is difficult at first blush, in my opinion, to accept that there is a realistic possibility that the unconscionable conduct claim would succeed where the other claims would fail; or that it would sound in substantially different relief so as to deprive the group members in the other representative proceedings of a benefit by way of remedy that might not otherwise be available to them as members of the competing proceedings.

342. As to the Wileypark claim based on the receipt of legal advice, again it is not apparent to me that this would add to the ambit of likely relief (and there is, in any event, an argument that the particular allegations are already subsumed in the particularisation of the relevant causes of action in the other proceedings). If not so subsumed, then it would be open to the other representative plaintiffs to amend to include those claims if so adduced (and subject to any limitation issues in this regard). Mr Georgiou’s submission, that it is unlikely that simply the existence of legal advice will be determinative in contrast to the failure of AMP to disclose the actual policy it was applying (see T 96), has some force in my opinion.

343. What the above means is that I am not persuaded that group members will be deprived in any real sense of access to a particular remedy (or case theory) if only one proceeding (whichever it may be) is now permitted to proceed, particularly where AMP accepts that there is no barrier to the claims of all group members being maintained through the vehicle of one proceeding (and only seems to cavil with the proposition that there be an amendment to introduce claims that it says were statute-barred at the time of the filing of the Wigmans proceeding).

344. There is no doubt that the bringing of multiple representative proceedings has the potential to increase costs, waste court resources and unnecessarily vex defendants. In this regard, AMP points to the criticism that has been made by various of the competing plaintiffs of the other plaintiffs’ costs estimates as emblematic of the fact that the plaintiffs in each of the competing proceedings have different litigation strategies and case theories (referring, by way of example, to the different positions taken by the solicitors in the Wigmans and Georgiou proceedings as to the ambit of the likely discovery in this matter; and the different approaches taken to the anticipated timing of any mediation of the disputes) and submitting that the existence of these divergences highlights that permitting more than one proceeding to continue could only result in tension between the proceedings and consequent disruption and inefficiency.

345. Another matter raised by AMP in this context is AMP’s concern that the maintenance of multiple proceedings is likely to impede any attempt to mediate the proceedings, since the continuation of the competing proceedings would require AMP to deal with multiple proceedings, law firms, teams of counsel and litigation funders (reference here being made to the observations of Beech-Jones J in Hassid v Queensland Bulk Water Supply Authority t/as Seqwater [2017] NSWSC 599).

346. AMP’s concern as to the incurring of unnecessary or duplicated costs is not unreasonable. The kinds of additional costs that have been recognised as arising from multiple proceedings were considered in Bellamy’s by Beach J (see at [44]). AMP says, and I accept, that at least a portion of costs of that will not likely be recoverable by whichever party is ultimately successful in the proceedings and, hence, the concern to avoid additional costs being incurred unnecessarily. Moreover, it raises a concern as to the ability to recover costs already incurred having regard to the stance taken by various of the parties in relation to the costs of the unsuccessful applications that were made before Stevenson J for the transfer of the Wigmans proceeding to the Federal Court (now determined by his Honour in Wigmans v AMP (No 3) and Wigmans v AMP (No 4)).

347. Therefore, I consider that it is not necessary (to permit access to justice) for what are essentially duplicative proceedings to be allowed to continue. No one, other than Wileypark, has expressed a willingness to proceed as a closed class if is proceeding were otherwise to be stayed (it says, as I apprehend it, that it should continue either as a second open class or as a very large closed class). Considering that the continuation of more than one of the competing representative proceedings would be inimical to the facilitation of the just, quick and cheap resolution of the real issues in these proceedings; and would, in the words of Lee J in GetSwift (at [309]) “involve an element of vexation to be occasioned to [AMP] when there is no justifiable reason why it should face [four] open class actions rather than one”, this should not be permitted.

348. I accept AMP’s submission that the course proposed by Wileypark (to the effect that its proceeding should go forward as an open class proceeding, but that the other proceedings should be permitted to continue as closed classes; or that, if another proceeding goes forward as an open class proceeding its proceeding should nevertheless not be stayed) could only lead to unnecessary duplication, inefficiency and wasted costs and resources; and that the appropriate course is to permit only one proceeding to continue and for there to be a permanent stay of the remaining proceedings. I do not accept Wileypark’s submission that so doing amounts to an unreasonable or impermissible interference with group members’ freedom of contract.

349. The issue then is as to which of the competing proceedings should be permitted to continue (in the interests both of justice and of group members, and consistent with the overriding purpose of achieving the just, quick and cheap resolution of the real issues in the proceedings) or, as AMP put it, looking to the best and most efficient result for group members and the fairness to the defendant.

350. After much consideration, I have formed the view that the consolidated Komlotex/Fernbrook proceeding should proceed. In reaching that conclusion I have taken into account the voluminous submissions and material put forward by the respective representative plaintiffs and have concluded in summary, that: the first mover advantage should be given no weight; there is no sensible basis to differentiate between the respective legal teams (each of which I am satisfied has the skill and capacity to conduct proceedings of this kind in the interests of class members); the bookbuilding efforts of some of the representative plaintiffs should be disregarded; the emphasis placed on the “informed choice” made by institutional investors who have signed up to the Wileypark/IMF proposal has been overstated; and that both the perceived advantage of the “no additional cost” expertise of IMF in statistical analysis of data or project management services (for which it ultimately would be remunerated by way of its funding commission) and the fact that the staff with the decision-making role in Augusta are qualified lawyers have been overstated; and that there is no real juridical advantage in the pleading put forward by any of the parties over that of the others.

351. I consider that there are potential incentives and corresponding disincentives in all of the funding models; and that, ultimately, it is the inevitability of court scrutiny of the overall costs at the time of any settlement or, if the matter proceeds to a contested hearing, judgment that will provide the most sure incentive for solicitors and funders to act responsibly and in the best interests of group members.

352. I accept that the Wigmans proceeding is the most advanced (and that this reflects an admirable preparedness by Ms Wigmans to meet the stringent demands on matters commenced in the commercial list in this Court for the efficient preparation of matters for hearing) but I consider that the remaining proceedings will quickly be able to “catch up” when equally under the case management of this list; and I have regard to the fact that there is a legitimate difference of opinion in terms of litigation strategy as to whether an early mediation would be in the best interests of group members.

353. I have placed no weight on the complaints made by various of the representative plaintiffs as to the conduct to date of the other competing proceedings (it seems to me that most, if not all, share part of the responsibility for the debacle that occurred at the time of the various foreshadowed anti, anti-anti, and anti-anti-anti suit injunctions; and that there is no proper basis otherwise to criticise as dilatory the conduct of any of the proceedings to date).

354. The factor on which I have placed most weight is that the “no win, no fee” model proposed by Komlotex/Fernbrook involves no funding commission; that the modelling undertaken as to costs and returns (accepting the limitations of any process which involves standardising the different assumptions or which the respective costs estimates are based) indicates that, on most scenarios, the net return for group members is likely to be the highest or around the highest on the Komlotex/Fernbrook scenario; and that Maurice Blackburn is prepared to proffer security for costs to match that provided by Ms Wigmans in the Wigmans proceeding. (If there are real concerns as to its balance sheet position, or as to the sufficiency of that amount as security for its costs, no doubt AMP will make use of the liberty to apply for further security to be provided in due course.)

337. As I have noted (more than once), I consider that the process of seeking to adjudicate between the abilities of well-qualified and experienced litigation lawyers to conduct proceedings of this kind (and the “slings and arrows” cast by them against each other) was unedifying and I do not consider that there is a sensible basis on which to differentiate between the abilities of the respective firms (or the reputations of their funders).

338. I accept that the process in which I have been engaged is one that inevitably involves cost and delay. However, it is a process that it is not possible to avoid (particularly in light of the admonition of the Full Court). Moreover, part of the delay in the present case, for which I accept responsibility was occasioned by my view that it was appropriate to await a determination at intermediate appellate level as to the challenge to the making of CFOs.

Orders

357. I propose to make orders as sought by Komlotex in its notices of motion for the consolidation of its proceeding with that of Fernbrook and for the stay of the other representative proceedings. Those orders will be conditional on the payment into Court on behalf of Komlotex and Fernbrook of the sum of $5 million as security for the defendant’s costs, without prejudice to the ability of AMP to seek additional security as the matter progresses. I propose to reserve the question of costs in case there are submissions to be made in that regard. It may also be that there are consequential orders to be made (I have in mind the payment out of the security paid into Court by Burford, for example). For that purpose, I will give liberty to apply. I will also list the matter for directions for the further case management of the Komlotex/Fernbrook proceeding.

358. The orders I make are as follows:

1. Pursuant to r 28.5 of the Uniform Civil Procedure Rules 2005 (NSW), order that proceeding 2018/310118 (the Komlotex proceeding) be consolidated with proceeding 2018/309329 (the Fernbrook proceeding) and that the consolidated proceeding be known as Komlotex Pty Ltd v AMP Limited (Consolidated proceeding).

2. Order that the plaintiff in the Komlotex proceeding and the plaintiff in the Fernbrook proceeding (together, the joint plaintiffs) be, respectively, the first plaintiff and the second plaintiff in the Consolidated proceeding.

3. Order that the joint plaintiffs be represented by one firm of solicitors (being, until further order, the current solicitors for the plaintiff in the Komlotex proceeding, Maurice Blackburn).

4. Order that the costs to date of each of the Komlotex proceeding and the Fernbrook proceeding be treated as costs in the Consolidated proceeding.

5. Order that the joint plaintiffs have liberty to seek, on any application for approval of a settlement of the Consolidated proceeding or for approval of costs following judgment, orders for approval of the costs referred to in order 4 above.

6. Subject to the payment into Court on behalf of the joint plaintiffs of the sum of $5 million as security for the defendant’s costs (without prejudice to the defendant’s ability from time to time to seek the provision of further security) order, pursuant to s 67 and s 183 of the Civil Procedure Act 2005 (NSW) and in the inherent power of the Court, that the following proceedings be permanently stayed:

1. 2018/00145792 (Wigmans v AMP Limited);

2. 2018/310082 (Wileypark Pty Ltd v AMP Limited); and

3. 2018/310103 (Andrew Georgiou v AMP Limited).

7. Reserve the question of the costs of the various motions brought by the plaintiffs in each of the proceedings referred to in order 6 above and the costs of the plaintiff in the Komlotex proceeding in respect of its notices of motion seeking a stay of the proceedings referred to in order 6 above; with a view to dealing with the question of costs on the papers.

8. Liberty to apply on 48 hours’ notice.

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Decision last updated: 23 May 2019