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
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Wigmans v AMP Ltd [2019] NSWSC 603
Case
[2019] NSWSC 603
Decision Date
CaseChat Overview and Summary
The case of Wigmans v AMP Ltd was before the Federal Court of Australia. The dispute arose from a representative proceeding brought on behalf of a class of investors who had invested in the AMP High Interest Savings Account. The class action sought to recover losses incurred due to alleged misleading and deceptive conduct by AMP Ltd in relation to the investment product. The primary issue before the court was whether the subsequent commencement of proceedings was an abuse of process, given that a similar proceeding was already underway. The court had to consider the principles of case management and determine the factors that would assist in reaching a decision that served the best interests of the overall group members.
The court examined the relevant case law and statutory provisions to assess whether the commencement of the subsequent proceedings constituted an abuse of process. The primary consideration was whether the new proceedings were duplicative and whether they would unduly prejudice the defendants or other parties involved. The court also weighed the interests of the group members, including the potential for increased costs and delays, and the benefits of potentially achieving a more comprehensive outcome. The decision involved balancing the interests of the parties and ensuring that the proceedings were conducted in a manner that was fair and efficient.
The Federal Court concluded that the subsequent proceedings were not an abuse of process, provided that certain conditions were met. The court emphasised the importance of considering the best interests of the group members and the principles of case management. It found that while the new proceedings should not be duplicative, there was a legitimate basis for the class action to proceed, particularly if it could address issues that were not fully covered in the earlier proceeding. The court also outlined specific conditions that would need to be adhered to, such as ensuring there was no undue prejudice to the defendants and that the proceedings were managed in a way that avoided unnecessary duplication and expense.
The court ordered that the subsequent proceedings could continue, subject to the conditions outlined. These conditions included ensuring that the proceedings did not duplicate the earlier action, avoiding any undue prejudice to the defendants, and managing the proceedings to minimise costs and delays. The court also mandated that both parties cooperate to ensure that the interests of the group members were protected and that the proceedings were conducted efficiently and effectively.