Wigmans v AMP Ltd

BELL P: Unlike the application for leave to appeal recently considered in Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd [2019] NSWCA 61; (2019) 367 ALR 146 (Hive) which involved “litigation about where to litigate” (see at [27]), the application for leave to appeal in the present case involves litigation about who is to litigate in the context of multiple open class actions brought against AMP Ltd (AMP) following testimony given in the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (the Royal Commission) on 16 and 17 April 2018 by executives of AMP.

Within a week of that evidence having been given, a flurry of press releases signalled that five firms of solicitors were investigating potential class actions. Within seven weeks, some five class actions had been commenced on behalf of shareholders in AMP who had made investments during periods of time in which it was said that AMP ought to have disclosed to the market certain information which had emerged as a result of the testimony in the Royal Commission. Broadly speaking, damages have been sought for breach of continuous disclosure obligations provided by the Corporations Act 2001 (Cth) (Corporations Act). Related claims have also been formulated in a number of the cases under the Australian Consumer Law and cognate statutory provisions.

Securities class actions of this kind have become a common feature of the Australian legal landscape following the introduction of procedures for representative proceedings or class actions in the Supreme Court of New South Wales in 2010 by the insertion of Pt 10 into the Civil Procedure Act 2005 (NSW) (Civil Procedure Act), similar provisions having been introduced by Part IVA of the Federal Court of Australia Act 1976 (Cth) (Federal Court of Australia Act) which commenced in 1992.

All of the class actions in the present case were “open” class actions in the sense that, apart from the act of investment in the defendant company within the period specified in the class or group definition, none of the class or group members had to take any further step to become a member of the class such as enter into a retainer agreement with a firm of solicitors and/or a funding agreement with a funder. This means that an investor could be a member of multiple classes or groups, depending on the degree of overlap in the definitions of class or group. It should be noted that, even within an open class, persons or entities falling within the class definition may enter into retainer and/or funding agreements (see, for example, Impiombato v BHP Billiton Limited (No 2) [2018] FCA 2045; (2018) 364 ALR 162) but that fact is not a criterion for membership of the group or class, although it may have implications for the distribution of any settlement ultimately secured and/or the structuring of any common fund orders (as to which, see Brewster v BMW Australia Ltd [2019] NSWCA 35; (2019) 366 ALR 171; and Westpac Banking Corporation v Lenthall [2019] FCAFC 34; (2019) 366 ALR 136; noting that both decisions are subject to an appeal to the High Court which is currently reserved).

Four of the five class actions against AMP in the present case were commenced in the Federal Court but the first in time, that brought by Ms Marion Antoinette Wigmans (Ms Wigmans), was commenced in the Supreme Court of New South Wales on 9 May 2018. After what may be described neutrally as a degree of jurisdictional manoeuvring, the four class actions that had been commenced in the Federal Court found their way to the Supreme Court as a result of the decision of the Full Court of the Federal Court in Wileypark Pty Ltd v AMP Ltd [2018] FCAFC 143; (2018) 359 ALR 43 (Wileypark). Procedurally, this was effected by a transfer of the Federal Court proceedings pursuant to s 1337H of the Corporations Act.

There were thus five sets of open class actions or representative proceedings relating to essentially the same subject matter pending in the Commercial List of the Supreme Court of New South Wales by late 2018. This was not a circumstance that any of the lead plaintiffs in any of the sets of proceedings wished to continue nor, unsurprisingly, was it a circumstance which AMP welcomed with equanimity. Two of the sets of proceedings which were pending were consolidated so that five became four. Each of the lead plaintiffs in each of the remaining four actions, namely Ms Wigmans, Komlotex Pty Ltd (Komlotex), Wileypark Pty Ltd (Wileypark) and Mr Andrew Georgiou (Mr Georgiou), brought applications to stay each of the other sets of proceedings. AMP, whilst not filing a stay application, supported an outcome in which it would face only one set of proceedings.

Pausing there, it is important to note that there are a variety of ways in which multiple overlapping open class actions may be managed. Staying all but one set of proceedings is not the only possible option. Indeed, far from it. Thus, in Southernwood v Brambles Ltd [2019] FCA 1021, a consolidation order coupled with common fund and related co-operation orders were made. In that case, at [20], reference was made to a variety of other available options for dealing with the possibility of competing overlapping class actions. These included:

There is no “one size fits all” response. The vice of duplication may be managed by means other than a stay of proceedings: see Bellamy’s at [43] and [113]-[118]. Circumstances may also be affected by whether group members subsequently opt out of certain sets of proceedings (see, in this regard, Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 56 at [74]; [1999] ATPR 41-679 (Johnson Tiles)) or by the impact on subsisting contractual funding and retainer arrangements (as to which, see Bellamy’s at [56]).

Each of the available possible options may, depending on the circumstances of the case, be adapted and integrate elements of other options. There are various permutations and there is and should be an inherent flexibility as to how circumstances such as those presented by the present case ought to be handled.

Most recently, in the Commercial List of the Supreme Court of New South Wales, Hammerschlag J ordered, with admirable economy, his customary efficiency and commercial creativity, a particular form of what was in effect funding consolidation in three sets of proceedings with RCR Tomlinson Ltd as a common defendant. After hearing argument over the course of an hour or so in the Friday motions list on 5 August 2019, his Honour said the following:

Another example of a creative nuanced solution to the problem of multiple class actions tailored to the particular facts and circumstances of the case was that crafted by Ball J in Commercial List proceedings in Smith v Australian Executor Trustees Ltd; Creighton v Australian Executor Trustees Ltd [2016] NSWSC 17 (Smith) and which involved essentially requiring group members to exercise an option as to which group to be a member of. That approach provided a template for Beach J to follow a similar course, although adapted to the facts of the particular case, in Bellamy’s. His Honour made extensive reference to Smith at [63] of his reasons and his subsequent orders effectively created one closed class and one default open class: see Bellamy’s at [65].

In the present case, as I have noted at [6] above, all parties sought an outcome by which only one set of proceedings would continue to trial. The stay applications were heard shortly after the Full Court of the Federal Court had published its judgment in GetSwift dismissing an appeal from a decision to stay two of three sets of open class action proceedings. In that case, it was the respondent, GetSwift Ltd, that had sought the stay of proceedings although, like AMP in the present case, it was agnostic as to which class action should continue as the vehicle by which group members’ claims were to be pursued: see at [2], [41].

Unsurprisingly, the Full Federal Court’s decision in GetSwift assumed significance in the hearing of the stay applications before the primary judge, as it did in this Court, and it was on account of a foreshadowed challenge to the correctness of that decision that I convened a five member bench. In the event, no real assault was made on GetSwift. Rather, it was contended that the arguments sought to be put on the appeal to this Court had not been made in GetSwift and, as such, that decision did not stand in the way of Ms Wigmans succeeding in these proceedings.

The various stay applications made by each of Ms Wigmans, Komlotex, Wileypark and Mr Georgiou in due course came on for hearing before Ward CJ in Eq and it is from her Honour’s decision that Ms Wigmans now seeks leave to appeal. Her Honour had relevantly ordered, pursuant to ss 67 and 183 of the Civil Procedure Act and in the inherent power of the Court, that the representative proceedings that had been commenced by Ms Wigmans against AMP be permanently stayed. Her Honour also ordered that the representative proceedings which had been commenced by Wileypark and Mr Georgiou also be stayed. No application for leave to appeal has, however, been made by Wileypark or Mr Georgiou in respect of her Honour’s decision.

The result of her Honour’s orders was that the fourth set of representative proceedings, namely the Komlotex proceedings, and those proceedings alone will, subject to this application for leave to appeal, be permitted to go forward against AMP.

It may be noted that each of Ms Wigmans, Wileypark and Mr Georgiou are within the definition of group member in the Komlotex proceedings. In other words, although the proceedings in which each was respectively lead plaintiff have been stayed, each of Ms Wigmans, Wileypark and Mr Georgiou will have the benefit of the Komlotex proceedings, unless any of them choose to opt out of the Komlotex proceedings when the opportunity to do so arises.

The primary judge’s decision to grant a stay of the Wigmans proceeding involved, in essence, the application of an approach that had been endorsed by the Full Federal Court in GetSwift. This was described in submissions as involving a “multi-factorial” analysis of “relevant factors to be considered and balanced in a qualitative appraisal”.

Her Honour identified as the relevant factors to be taken into account in the present case:

In a detailed judgment, the primary judge worked through each of these factors in light of the evidence that had been presented and the voluminous submissions that had been made on behalf of the parties. She did so in a most thorough way and her conclusions were relevantly summarised as follows (at [350]−[354]):

Earlier in her decision, the primary judge had rejected an argument that had been made on behalf of Ms Wigmans to the effect that each of the other sets of proceedings amounted to an abuse of process and should be stayed for that reason.

The essence of the abuse of process argument advanced on behalf of Ms Wigmans in this regard was that there would be an abuse of process where:

This argument, rejected by the primary judge, is reflected in and, to a certain extent refined by the first ground of appeal in Ms Wigmans’ draft notice of appeal. That ground of appeal is expressed in the following terms:

The primary judge had said at [105] of her decision that:

It is convenient at this point also to note the other two grounds of appeal in the draft notice of appeal.

Proposed ground 2 was as follows:

Proposed ground 3 was as follows:

It is convenient first to deal with proposed appeal grounds 2 and 3. They are linked, as is made explicit in proposed ground 3(a). Proposed ground 2, despite the language in which it is expressed, in truth raised no issue of principle. Rather, it was an attack on the primary judge’s attempt to make an assessment, necessarily imperfect and future looking, of the prospective returns to group members on two broad assumptions, namely that the proceedings would run to finality or that they would settle by a particular and much earlier point in time. The legal costs incurred in the former scenario would obviously exceed those in the latter.

The primary judge was armed with the hourly rates of proposed counsel and solicitors for the Komlotex “team” and the Wigmans “team”. She also knew the rates of uplift that the solicitors for Komlotex proposed to charge (as well as the negotiated cap on that uplift) and the commission that the funders of the Wigmans proceedings proposed to take depending on the overall amount of recovery. These were two important integers in assessing the likely economic consequences to group or class members in the event that one or other sets of proceedings went forward.

An attack was made on her Honour’s evident assumption that both “teams” would take the same time to secure the same result (and indeed that the same result would be achieved by both teams). It was thus put, on behalf of Ms Wigmans, for example, that her legal team may prosecute the claim more efficiently than the Komlotex team and/or secure a superior outcome, whether as a result of forensic decisions during the course of the trial or superior skill in extracting settlement, such that it was unsafe and necessarily speculative to assume that the “cost” in terms of both legal costs and uplift (in the case of the Komlotex proceedings) and commission (in the case of the Wigmans proceedings) could be meaningfully compared through the exercise of standardisation to which the primary judge referred at [354] of her judgment (reproduced at [19] above) and explained far more fully at [178]-[216] in terms which do not require reproduction in these reasons.

Aside from the fact, as I have noted above, that the points sought to be raised by proposed appeal ground 2 do not, in my opinion, involve any issue of principle, I do not consider that the attack sought to be made on the primary judge’s approach to be persuasive. The primary judge was entitled to proceed on the basis that the respective legal teams were of equal competence (and no challenge was made to her judgment in this regard). Competence includes efficiency in the conduct of litigation. Both legal teams were also subject to identical ethical constraints in relation to the conduct of proceedings as well as, importantly, to the implied obligations imposed on legal representatives by s 56(4) of the Civil Procedure Act.

Further, the course of any trial would be closely case managed by the Commercial List judge assigned to hearing the matter. Proceedings conducted in that List are famously not permitted to meander, such that the submission that proceedings conducted by the Wigmans team may be resolved far more expeditiously (and therefore at less cost) than proceedings conducted by the Komlotex team is, in my view, more theoretical rather than real. Even though what fees a particular firm will be entitled to charge in respect of representative proceedings will be in the ultimate control of the Court, that did not render the exercise which the primary judge undertook futile.

As to the amount that may be procured by way of any settlement, this would ultimately be determined by AMP and although obviously this was a figure incapable of being known at the time of the stay application, it was nevertheless reasonable for the primary judge to proceed on the footing that the equally competent legal teams would bring that equal competence to the bargaining table in the mediation room, even though the different teams might in fact secure different financial outcomes.

Turning to proposed appeal ground 3, the premise upon which it is based, namely that the primary judge was correct to apply a multi-factorial analysis in considering the stay applications, taken in conjunction with the nature of the decision, namely to grant a stay of proceedings, is such that the Court would not ordinarily grant leave to appeal on such a ground.

This is so whether or not the decision to grant a permanent stay of proceedings is properly characterised as one on a matter of practice and procedure involving the exercise of a discretion, as to which there is, in my opinion, some room for debate: see, for example, the discussion by Spigelman CJ in Murakami v Wiryadi [2010] NSWCA 7 at [32]−[35]; (2010) 268 ALR 377 (Murakami); see also Studorp Ltd v Robinson [2012] NSWCA 382 and M Davies, AS Bell, PGL Brereton and M Douglas Nygh’s Conflict of Laws in Australia (10th ed, 2019 forthcoming) at 8.30-8.32. It may be that the decision to grant a permanent stay of proceedings does not sit comfortably within the dichotomy Sir Frederick Jordan drew in In the matter of the Will of F B Gilbert (dec) (1946) 46 SR (NSW) 318 at 323; (1946) 63 WN (NSW) 176, namely between “an exercise of discretion on a point of practice or procedure”, on the one hand, and “an exercise of discretion which determines substantive rights”, on the other hand.

Plainly the primary judge’s decision did not determine any substantive rights; it was also rather different, however, in its effect from a decision to award security for costs of the kind under consideration in, for example, PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 (PPK Willoughby), or a decision in relation to the amendment of a pleading or the resolution of a dispute over categories of discovery. And, as Spigelman CJ pointed out in Murakami at [33], although many decisions, including in the High Court and in this Court, have characterised the grant of a stay of proceedings on clearly inappropriate forum grounds as involving the exercise of a discretion, it may in truth be that the word “judgment” is more appropriate than “discretion” cf. the evaluative judgment required by the first “jurisdictional” stage in Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40.

Whatever its true character, the decision of the primary judge was interlocutory and of a kind requiring a grant of leave to appeal pursuant to s 101(2)(e) of the Supreme Court Act 1970 (NSW) (Supreme Court Act). As was observed in PPK Willoughby at [6]:

In my opinion, grounds 2 and 3 of the proposed draft notice of appeal neither raise any issue of principle or question of public importance, nor do they suggest “a reasonably clear injustice” flowing from the primary judge’s decision.

Not only do they raise no true issue of principle but, as I have pointed out in [16] above, the consequence of the primary judge’s decision was not to deny Ms Wigmans the benefit of class action proceedings arising from her status as an investor in AMP nor was it to preclude her, if she so chose, from opting out of the proceedings at the appropriate time and commencing proceedings in her own name as an individual against AMP.

Moreover, it did not (and will not) preclude her from making an application pursuant to s 171 of the Civil Procedure Act if dissatisfied with the adequacy of the representation of Komlotex in the representative proceedings which, subject to ground 1 of the draft notice of appeal, will be permitted to go forward in this Court. The question of injustice for the purposes of any decision to grant leave to appeal, moreover, is to be assessed by reference to the interests of Ms Wigmans and not those commercial interests aligned with the funding of the proceedings initiated in her name.

For these reasons, I would not grant leave to appeal in respect of either proposed grounds 2 and 3 and would note and endorse in this regard the primary judge’s observation at [216] of her judgment that:

For the reasons that I will now develop, proposed appeal ground 1 is in a different category and does raise an issue of principle. I would grant leave in respect of that ground but, as shall be seen, I would dismiss the appeal made by reference to it.

The terms of ground 1 of the proposed notice of appeal have been set out in [22] above. It goes to the question as to what principles are to be applied where one defendant, here AMP, is the subject of multiple “open” class actions, each commenced within a short space of time of each other by different plaintiffs, and multiple applications and cross applications for stays of proceedings have been sought.

Ms Wigmans’ argument rests on an asserted analogy with principles of lis alibi pendens associated with the High Court’s decision in Henry v Henry (1996) 185 CLR 571 at 591; [1996] HCA 51 (Henry v Henry), the “clearly inappropriate forum” language of Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55 (Voth) and abuse of process principles associated with the decisions in Moore v Inglis (1976) 50 ALJR 589; (1976) 9 ALR 509 at 513-516 (Moore v Inglis) and Walton v Gardiner (1993) 177 CLR 378 at 411; [1993] HCA 77.

As will be seen, none of those analogies is perfect, and the approach advanced by Ms Wigmans would operate in practice strongly to favour that party which is first to file open class action or representative proceedings, particularly where the class or group is relatively broadly defined. That is because that approach depends on a prima facie conclusion that subsequent proceedings are vexatious and oppressive and an onus cast on the proponents of subsequently commenced proceedings to demonstrate that the first commenced proceedings are “clearly inappropriate”. Whilst this formulation does not create a rigid first filed test, the operation of the onus and the difficulties of characterising proceedings as “clearly inappropriate” will mean that the onus will in practice be very difficult to discharge.

Ms Wigmans also sought to develop an argument to the effect that the structure of the provisions in the Civil Procedure Act relating to class actions supported her contention that primacy should be given to the proceedings she commenced because they were first in time. In particular, she emphasised that s 157 of the Civil Procedure Act authorised her commencement of proceedings, that s 161 of the Civil Procedure Act authorised her to describe or otherwise identify the group members and to specify the claims made and relief claimed on their behalf and that, if a group member wished to extricate him, her or itself from the group, he, she or it could do this at the opting out stage (see s 162 of the Civil Procedure Act) and that, at any time, a group member dissatisfied with the adequacy of representation by the representative party could apply to have the representative party replaced, pursuant to s 171 of the Civil Procedure Act.

It was thus put that the structure of the provisions in the Civil Procedure Act relating to representative proceedings provided mechanisms for the orderly conduct of those proceedings which, at least sub silentio, were premised on there being only one set of proceedings permitted for any group or class of members.

Komlotex, on the other hand, contended that the primary judge’s approach, consistent with that which had been adopted in GetSwift, was appropriate, was consistent with authorities such as Henry v Henry, did not involve any oppression to Ms Wigmans and indeed represented an outcome whereby the action that was in the best interests of Ms Wigmans, in her capacity as a group member, was permitted to go ahead.

Komlotex also submitted that the “clearly inappropriate forum” terminology, borrowed from Voth and sought to be adapted to the present case, such that the Wigmans proceedings should not be stayed unless they were “clearly inappropriate”, was quite inapposite, having its origins in a very different context and with its rationale informed by very different considerations, viz. the desire to avoid invidious comparisons with, and commentary upon, the merits of the courts and procedures available in other jurisdictions: see Voth at 558-559. Komlotex submitted that the analogy with “appropriate” or “clearly inappropriate forum” jurisprudence was “particularly unsuitable for representative proceedings” where interests of group members are paramount.

Komlotex also pointed to authority to the effect that there was no abuse of process arising from an existing group member filing a proceeding, including a representative proceeding, at least prior to the time fixed for opt out: see GetSwift at [121]-[156]; Johnson Tiles at [16]; Bellamy’s at [33]-[41]; Oliver v Commonwealth Bank of Australia (No 2) (2012) 205 FCR 540; [2012] FCA 755 at [1]−[3] (Oliver). Komlotex embraced the primary judge’s reasoning at [98] of her judgment in which she said that she did not accept that any of the competing representative proceedings was an abuse of process, her Honour having observed:

The issue presented by the first ground of appeal is one of multiplicity of proceedings.

The strong policy of the law is to avoid a multiplicity of proceedings. This can be seen in a number of different areas and contexts. Section 63 of the Supreme Court Act provides, for example, that:

Within our federal system, the same concern informs the cross-vesting regime. Thus, s 5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) and its analogues provides for the transfer to another state or territory or federal court of proceedings which arise out of, or relate to, other pending proceedings; see also s 20(4)(f) of the Service and Execution of Process Act 1992 (Cth).

The concern to minimise if not avoid multiple proceedings which is addressed in the cross-vesting regime was also a concern which predated the introduction of that regime. Thus, in Union Steamship Co of New Zealand Ltd v The Caradale (1937) 56 CLR 277 at 281; [1937] HCA 1 (The Caradale), Sir Owen Dixon observed that "[t]he inconvenience and embarrassment of allowing two independent actions involving the same question of liability to proceed contemporaneously in different courts needs no elaboration."

Where there are multiple sets of proceedings within one court, consolidation is the tool most frequently deployed to address the problem of multiplicity. It is not, however, the sole tool.

In McHenry v Lewis (1882) 22 ChD 397, there were two proceedings pending in the Chancery Division brought on behalf of share and bondholders in relation to shares in and bonds issued by the American and Great Western Railroad Company, but no orders for consolidation had been sought. In these circumstances, the Master of the Rolls, Sir George Jessel, in language reminiscent and certainly in the spirit of modern case management found in the famous report on civil procedure authored by his successor, Lord Woolf, over 100 years later (Access to Justice Final Report, 1996), said (at 404):

In the transnational context, the policy to avoid a multiplicity of proceedings is also very strong: see, for example, Hive at [81]-[89]; Incitec Ltd v Alkimos Shipping Corp (2004) 138 FCR 496; [2004] FCA 698 at [53] (Incitec) and the cases there cited. It is informed in part, but by no means exclusively, by concern for what is sometimes referred to as international judicial comity. More powerfully still, it is informed by “the deep and strong antipathy of courts for the promotion of circumstances allowing for inconsistent curial approaches to the same dispute”: Incitec at [53]. That having been said, it will not always be possible or appropriate to avoid a multiplicity of proceedings, as the decision of the Full Court of the Federal Court in TS Production LLC v Drew Pictures Pty Ltd (2008) 172 FCR 433; [2008] FCAFC 194 (TS Production) illustrates.

Within Europe, the problem of a multiplicity of civil or commercial disputes is regulated by Art 29 of Regulation 1215/2012 of the European Parliament (the successor of Art 21 of the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968, and Art 27 of Regulation 44/2001 of the European Council) which is expressed in these terms:

That Article has the advantage of chronological certainty, although its apparent simplicity masks a number of complexities, as explained by Professor Briggs: A Briggs Civil Jurisdiction and Judgments (6th ed, 2015) at 2.260-2.277.

Although the order of filing of proceedings has been said in cases such as Henry v Henry to be a relevant consideration in any application to stay proceedings (see further at [68] below), the common law has never favoured a “first filed rule” as a means of resolving which of competing proceedings should proceed at all or should proceed first and, to the extent it is a relevant factor, the sequence of filing has traditionally been less relevant in a case such as the present where the competing sets of proceedings have been commenced within a short time of each other. Thus, in The Caradale where proceedings were commenced “almost at the same time”, Dixon J (at 281) described as “not a very substantial consideration” the fact that one was “a little quicker” than the other. In Reynolds v Reynolds [1977] 2 NSWLR 295 at 307 (Reynolds v Reynolds), Waddell J contemplated that the continuation of a first rather than second commenced set of proceedings could amount to an abuse of process.

In The Tillie Lykes [1977] 1 Lloyd’s Rep 124 at 128, Brandon J, as he then was, observed that:

In Owners of the Las Mercedes v Owners of the Abidin Daver [1984] AC 398 at 426, Lord Templeman expressed the view that “[a]n ugly rush to get one action decided ahead of the other is not to be replaced by an ugly rush to issue proceedings in one country before the issue of proceedings in another.” In similar vein, in Du Pont v Agnew [1987] 2 Lloyd’s Rep 585 at 593, Bingham LJ, as he then was, did not regard the sequence of commencement as significant, noting that what might be little more than an accident of timing ought not to determine the outcome of a stay application.

A similar resistance to a first filed approach has been articulated by Allsop CJ with great clarity in Wileypark at [18] where his Honour said:

In any discussion of multiplicity of proceedings, it needs to be recognised that there may be a multiplicity of proceedings for different reasons and that there are different types of “multiple proceedings”. Many plaintiffs may be suing a common defendant or a common set of defendants in separate sets of proceedings arising out of the same facts, circumstances or incident, for example. Related parties in one corporate group may be suing related parties in another corporate group in relation to the same or a similar underlying issue: see, for example, Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Limited (1992) 34 FCR 287; [1992] FCA 71. Or the same or related parties may be suing each other or the related parties about, or in relation to, the same underlying issue or issues or related issues in different jurisdictions: see, for example, Henry v Henry; CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345; [1997] HCA 33 (CSR v Cigna); Donohue v Armco Inc [2002] 1 All ER 749; [2002] 1 Lloyd’s Rep 425.

Other situations arise where a plaintiff sues a defendant and a defendant brings separate proceedings against the plaintiff. Where the two sets of proceedings have been brought in the one court, they can readily be consolidated and one or the other set of proceedings becomes a cross claim. Where the two sets of proceedings are commenced in different jurisdictions, consolidation is, of course, not possible and the only means of securing an outcome by which one set of proceedings goes ahead is by means of a stay of the local proceedings or an anti-suit injunction restraining the plaintiff in the foreign proceedings from continuing in that forum. In some cases, however, where neither of these remedies is available or appropriate to grant, as I have pointed out above with reference to TS Production, proceedings may continue concurrently, as unattractive as this prospect appears.

Ordinarily, a defendant is not able to complain that he, she or it is being sued by numerous people or parties. Where the claims overlap or arise out of the same substratum of facts, the obvious and sensible course, at least where the claims are being prosecuted in a single forum, is to have those proceedings consolidated or at the very least heard together, frequently with evidence in one case being evidence in the other. The rules of civil procedure facilitate this, for reasons both of economy and efficiency: see r 28.5 of the Uniform Civil Procedure Rules 2005 (NSW).

It is generally only where a defendant is being sued by the same party in more than one proceeding and typically in more than one forum that the defendant can seek to stay (or restrain) one of the sets of proceedings on grounds of vexation or oppression, or require that the plaintiff elect which proceeding to take forward: Peruvian Guano Co v Bockwoldt (1883) 23 ChD 225; Reynolds v Reynolds at 306. This is because to sue concurrently in parallel proceedings will generally, or at least prima facie, be characterised as vexatious and oppressive. So said the High Court in Henry v Henry at 591, citing Moore v Inglis and, on appeal, Inglis v Moore (1976) 51 ALJR 207.

The position is more complex where there are different moving parties in two different jurisdictions, such as where A sues B in one forum and B sues A in another forum. This was the position in Henry v Henry. It is more complex still where there is not a complete identity of parties or underlying issues, such as was the position in CSR v Cigna.

In Henry v Henry, the High Court identified a number of relevant considerations to be taken into account where concurrent sets of proceedings were on foot between the same parties, and there was an application to stay the local proceedings. Some but not all of these reflected the fact that the two relevant sets of proceedings were pending in different countries. The Court said (at 592-593) that:

Although this passage refers to “the order in which the proceedings were instituted”, nothing in the decision lends any weight to the view that that matter has some particular significance over and above the suite of other considerations enunciated. It is only one of a number of potentially relevant factors and the closer in time the respective proceedings are commenced the less significant the consideration is likely to be: see also de Dampierre v de Dampierre [1988] AC 92 at 108.

Ms Wigmans’ contention starts with the proposition that, as her proceedings were commenced first, the application to stay her proceedings should be considered first. This starting point may be questionable: if Ms Wigmans filed her application to stay the Komlotex proceedings first, why should that application not be heard first, and Ms Wigmans assume the onus of demonstrating that Komlotex’s proceedings are clearly inappropriate?

Putting this difficulty to one side, as I have noted above, Ms Wigmans says that, as her proceedings were regularly commenced, can provide ample relief to all members of the class, will work no injustice to AMP in the sense that security for the AMP’s costs if Ms Wigmans is unsuccessful can or has been provided and do not otherwise amount to an abuse of process, there is no basis for staying them. Once this conclusion is reached, she submits that all the subsequently filed proceedings are necessarily duplicative, and calls in aid decisions such as Moore v Inglis to support the submission that the duplicative proceedings are vexatious and oppressive.

But if there is any vexation or oppression by reason of duplicated or overlapping proceedings, the vexation and oppression is to the defendant. That is not Ms Wigmans but AMP, yet, as with the respondent in GetSwift, AMP has been agnostic as to which of the sets of proceedings continue against it, so long as adequate security is provided and it is only facing one set of proceedings.

Further, as the primary judge observed and as I have explained at [44] above, the way Ms Wigmans’ submission was formulated, and the approach articulated on her behalf, gives considerable advantage to the set of proceedings which is first filed or (possibly) first served, noting that the first filed proceeding need not necessarily be the first served proceeding. The same reasons that have been advanced against a rigid first filed rule in the cases to which I have referred at [57]−[62] above also point against the force of this argument.

Cases such as the present also differ in at least three key respects from cases such as Henry v Henry and CSR v Cigna upon which Ms Wigmans relies by analogy, as is made explicit in the first ground of the draft notice of appeal, reproduced at [22] above and in her written submissions.

Firstly, unlike either of those two cases, in the present case the party seeking the stay of proceedings was not the party who was being sued twice or exposed to the costs and risks of concurrent sets of proceedings. That was AMP but, as I have pointed out above, AMP has not sought a stay of proceedings (although its broad position is that it should not be exposed to multiple proceedings). But the key point is that neither Komlotex nor Ms Wigmans are in positions analogous with the applicants for a stay of proceedings in either Henry v Henry or CSR v Cigna. They are not being vexed or oppressed by being sued twice.

Secondly, the appropriation in Ms Wigmans’ submissions of the language of “not clearly inappropriate” from cases such as Voth, in aid of an argument concerning multiple cases within a single forum is, as observed at [48] above, inapposite. Further, even in the context where it operates, the “clearly inappropriate forum” test is not one that is particularly apt to minimise a multiplicity of suits: see “Transnational Commercial Litigation and the current state of Australian law” in KE Lindgren (ed) International Commercial Litigation and Dispute Resolution (2010) 43 at 58-59 and, for example, Reinsurance Australia Corp Ltd v HIH Casualty and General Insurance Ltd (in liq) [2003] FCA 56; (2003) 254 ALR 29.

Thirdly, Ms Wigmans, who seeks to stay the Komlotex proceedings, is not a party to those proceedings, and the same is true of Komlotex with regard to the Wigmans proceedings. This is so even though each falls within the group the other has defined, and damages are being sought on behalf of each other in the respective proceedings.

Notwithstanding the thrust of the oral submissions advanced on behalf of Ms Wigmans, a person who falls within the definition of a group is not, by reason of that fact alone, a party to proceedings commenced on behalf of the group. Indeed, that is a key and important feature of the representative proceedings and class action provisions. That is not altered either because Ms Wigmans or Komlotex is bringing a claim for relief on behalf of the other, nor by reason of the fact that it would be open to either to ask the Court to substitute another group member for Ms Wigmans or Komlotex respectively pursuant to s 171 of the Civil Procedure Act in both proceedings.

As a matter of substance, group members are not bound by any actions of the representative or lead plaintiff until the time for opting out of proceedings has arisen, a group member only being potentially bound once he, she or it elects not to opt out. In temporal terms, this occasion does not arise at the outset of the proceedings.

The present case differs in at least one key respect from Moore v Inglis, another case expressly relied upon by Ms Wigmans, insofar as, although the defendants in the proceedings that had been commenced in the original jurisdiction of the High Court in that case were different from the defendants who were being sued for defamation and conspiracy in the Supreme Court of the Australian Capital Territory, Mrs Inglis was the common plaintiff and the dominis litis in each set of proceedings. That is not so in the present case.

Once the differences between the juridical settings of the cases upon which Ms Wigmans relies, on the one hand, and the representative proceedings regime provided for by Pt 10 of the Civil Procedure Act are appreciated, the force of Ms Wigmans’ argument is very significantly reduced.

That is even before one takes into consideration the decision of the Full Court of the Federal Court in GetSwift which is, of course, entitled to great respect and which, whilst it did not involve uniform legislation, involved the class action regime provided for by Part IVA of the Federal Court of Australia Act which is sufficiently similar to that enshrined in Pt 10 of the Civil Procedure Act that considerations of comity associated with observations by the High Court in Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492; [1993] HCA 15 seem to me to apply.

As the Full Court put it in GetSwift at [150], the commencement of a subsequent bona fide set of representative proceedings prior to the court giving substantive directions in existing but overlapping representative proceedings (i.e. with overlapping group members):

If one is looking for analogies as Ms Wigmans did in the formulation of her appeal, it seems to me that the closest analogy is supplied by the passage in McHenry v Lewis which I have set out at [55] above. In truth, that approach is remarkably similar to that which was endorsed in GetSwift and which was undertaken by the primary judge in the present case.

Notwithstanding Komlotex’s submission that the forum non conveniens or inappropriate forum cases should be distinguished and should not drive the analysis, it may also be observed that, in that field of discourse, the resources of the plaintiffs in group proceedings and the availability of funding to such parties have been treated as relevant considerations. Thus, in Lubbe v Cape plc [2000] 1 WLR 1545 (Lubbe v Cape plc), the House of Lords refused to stay proceedings which had been commenced in England where it was said that South Africa was the natural or more appropriate forum, in circumstances where it was held that the proceedings could only be handled efficiently and expeditiously on a group basis in England where appropriate funding was available. The lack of means available in South Africa to prosecute the claims required the application for a stay of proceedings to be refused.

The ultimate touchstone for the decision of the House of Lords was its view as to what the ends of justice required. Although Lubbe v Cape plc is obviously not on all fours with the present case, it does illustrate that, even in the transnational context, financial considerations affecting, in that case, one side’s ability to proceed have been treated as relevant. So also, in this regard, the plurality in Henry v Henry at 593 (in the passage set out at [68] above), identified the resources available to one party as a relevant consideration.

These cases go a considerable way to rebutting the submission made on behalf of Ms Wigmans that it was in some way “unjudicial” for the Court to be making an assessment of, or to become involved in, making an assessment as to what was in the best interests of group members in terms of the likely financial outcome of proceedings for members of the group, even on a provisional basis.

Notwithstanding their voluminous submissions at first instance and on appeal, neither party (so far as I am aware) made reference to s 58 of the Civil Procedure Act which, in my opinion, also stands in the way of the argument sought to be advanced by Ms Wigmans by reference to common law authorities concerned with duplicative proceedings and abuse of process. That section, entitled “Court to follow dictates of justice” and which mandates how judges of this Court are to determine, inter alia, stay applications, relevantly provides as follows:

In many respects, the parties’ resort to notions of abuse of process and reliance on cases from a transnational context such as Henry v Henry obscured the breadth of the power and discretion to grant a stay of proceedings, informed by the non-exhaustive factors set out in s 58(2) of the Civil Procedure Act.

The doctrinal debate which occurred in GetSwift as to whether or not the only basis for a stay of proceedings in the Federal Court was to prevent an abuse of process (see GetSwift at [95] but cf at [121]-[126]), as opposed to broader considerations involving case management and the interests of group or class members, simply does not arise in the present case in light of s 58 of the Civil Procedure Act.

There was no error of principle in the approach adopted by the primary judge in the present case. Her Honour exercised a discretion vested in her by the Civil Procedure Act in accordance with what she considered to be the dictates of justice in the particular case.

In my opinion, not only was that approach open and undertaken without error, but it was consistent with what was said by Sir Gerard Brennan in Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398 at 408; [1995] HCA 9 , in turn cited by Gleeson CJ in Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1; [2002] HCA 27 at [21], namely that it was:

The primary judge’s decision may also be seen as consistent with the exercise of the powers of the Court to achieve the overriding purpose, and, in particular, a concern to exercise powers to facilitate the just, quick and cheap resolution of the real issues in the dispute. Her Honour took the view which was, in my opinion, open to her on the material before her that the stay of the Wigmans proceedings would be just in the sense of likely to maximise the return to group members without prejudicing AMP in the event that Komlotex succeeded in the claim.

The net cost of any litigation would also, on the approach the primary judge took and which I consider was reasonably open to her to take, be “cheaper” as a result of staying the Wigmans proceedings. That was a matter which of course could never be known with certainty, but was an assessment reached by her Honour on the basis of the materials before her.

My only real point of difference with the primary judge (and it is a slight one) relates to a question of terminology. At [104] of her decision, under the heading “Determination”, her Honour stated that she had “no difficulty with the proposition that the issue of multiplicity of proceedings should be approached by reference to case management principles (and that in so doing the overriding purpose mandated by s 56 of the Civil Procedure Act must be steadfastly borne in mind)”. Whilst I certainly agree that the overriding purpose mandated by s 56 of the Civil Procedure Act was relevant, and that the decision as to which of the various options of the kind I have referred to in [7]−[11] above should be adopted can be said to involve issues of case management, the exercise of a discretion to stay proceedings involves an assessment as to whether the ends of justice require such a remedy. This is a larger task, in my opinion, than one of mere “case management”, as I would understand that term.

Before completing these reasons, there is one feature of the decision in GetSwift with which I would respectfully take issue. At [278], their Honours said:

Whilst it may be accepted that if, in a scenario such as arose in the present case, the respective legal teams differed vastly and starkly in terms of their experience in the conduct of class actions or representative proceedings, that may be a relevant consideration, for my own part, I would be extremely reluctant to endorse a process by which a practice court was required to engage in an assessment as to which of the legal teams was “the most experienced and capable”.

Not only may the most experienced not be the most capable, but the criteria for the assessment of capability may be highly subjective and the evaluation of capability quite problematic. The whole process would not only be invidious for the Court but also, in my opinion, it would take the Court to territory into which it is inappropriate for it to travel.

For the reasons expressed in [27]−[41] above, I would refuse leave to appeal on grounds 2 and 3.

I would grant leave to appeal in respect of ground 1 but would dismiss the appeal. It follows that Ms Wigmans should pay the costs of the application for leave and of the appeal.

MACFARLAN JA: I agree with Bell P.

MEAGHER AND PAYNE JJA: We have read the decision of Bell P in draft and agree with the orders proposed by his Honour and with his reasons. We add only a few remarks in elaboration, which are not intended to detract from that agreement.

The problems with competing “open” representative actions, such as those in this litigation, arise from the fact of multiple actions being brought against the same defendant on behalf of the same group members which make the same claims or raise the same or substantially the same issues. That multiplicity of actions, unless addressed, has the consequence that there will be substantial, as well as unnecessary, duplication of legal and other work undertaken on behalf of the separately represented group members and the defendants, as well as inefficient use of the judicial and administrative resources of the Court.

As the President observes at [7]-[11], there are several ways in which, depending on the circumstances, the Court might address the fact of such multiple proceedings to achieve the just and efficient determination of the claims and issues in the underlying proceedings. In doing so, as was emphasised by Allsop CJ in Wileypark at [18]; (2018) 359 ALR 43, the persons whose interests must be given primary consideration are the represented group members and the defendants. Although the existence of the multiple representative actions is the result of the competitive activity of funders and law firms in the ‘representative proceedings marketplace’, the Court is not concerned with promoting or protecting the self-interests of those actors.

As to the position of the representative parties, it bears emphasising that as an “open” representative action to the extent that Ms Wigmans herself, or any other group member, does not wish to participate in the Komlotex proceedings they may, at the appropriate time, opt out: Civil Procedure Act 2005 (NSW), s 162. Ms Wigmans and those parties who have chosen to opt out could commence their own proceedings against AMP. If a sufficient number choose to opt out it is possible that separate representative proceedings against the defendant, AMP, could be commenced.

Here, each of the representative parties sought a stay of each of the proceedings commenced by the others; and AMP did not separately seek any stay order. Thus, as the President notes at [12], all parties sought the outcome that going forward there should be only one proceeding. In that context we make the following observations concerning some of the matters taken into account by the primary judge.

First, assuring fairness to group members is the only reason the Court has a role in assessing the funding models for competing pieces of litigation. However, the unusual nature of the Court’s role in assessing funding models at an early stage of the litigation should not be overstated. It is inevitable, assuming that there is a judgment for the plaintiffs or, as experience suggests is much more likely, a settlement, the Court will ultimately be involved in examining the costs to be charged to the group members. This will almost always involve examination of the relevant funding model. This is because the Court is required to scrutinise any settlement or distribution of a settlement sum: Civil Procedure Act, ss 173-174.

Secondly, findings about inherently uncertain future events, including findings about the amount of any judgment or settlement and the legal costs likely to be spent in obtaining that judgment or settlement will, of course, be subject to many contestable assumptions. The fact that no definite findings can be made about such future events does not mean that the primary judge was wrong to attempt to determine, on the basis of the common assumptions her Honour made, what outcomes might be achieved and then to take them into account. A good deal of time on the appeal was devoted to tables comparing financial outcomes for group members, in each case making those common assumptions. Whilst the appellant critiqued those tables with some force, we do not regard the exercise as irrelevant and unable to be taken into account, albeit in the limited way the primary judge did. It is obviously correct that litigation is a human process; and that whichever of the representative actions was allowed to proceed, in the event of a judgment or settlement, it may well produce a different amount of legal costs, a different judgment or settlement sum and a different distribution to group members than suggested in those tables. In addressing the difficult question of which of the competing “open” representative actions should proceed, however, her Honour was entitled to test the likelihood of future hypothetical events occurring based on common assumptions applied to each case.

In this context, we also emphasise our agreement with what Ward CJ in Eq said about the precedent value of this case:

Finally, it is clear that the circumstances in which the respective proceedings were commenced should be taken into account. In some cases the times at which the competing representative proceedings were commenced, considered in all of the circumstances, may be an important, and perhaps even decisive, factor. However, that is not because particular weight is necessarily to be given to the fact of first filing.

WHITE JA: I agree with Bell P and the additional observations of Meagher and Payne JJA.