Clarity from the High Court on competing class actions

No 'one size fits all' approach 7 min read

The High Court of Australia has provided much-needed clarity on competing class actions, handing down its decision in Wigmans v AMP Limited [2021] HCA 7. A majority of the court dismissed the appeal from the New South Wales Court of Appeal, finding that:

• there is no 'one size fits all' approach to resolving interlocutory disputes regarding competing class actions – the issue of multiplicity of proceedings may be addressed by a variety of means instead of, or in addition to, staying one or more proceeding;
• if the court considers that a stay is appropriate, its role is to determine which proceeding going ahead would be in the best interests of group members, through applying a multi-factorial analysis of the competing proceedings; and
• the ability to grant a stay of representative proceedings is not confined by a rule or presumption that the proceeding brought first is to be preferred over subsequent proceedings. However, the time of filing for each proceeding is a relevant consideration.

Key takeaways

The High Court's decision provides clarity, but maintains the status quo for the determination of the issue of competing class actions. Moving forward, we expect that:

• there will be a continuation of current case management practices, with courts encouraging plaintiffs to resolve the issue of multiplicity of proceedings between themselves, and undertaking a multi-factorial assessment when a suitable proposal has not been provided;
• the prospect of a permanent stay will continue to place pressure on plaintiff firms and litigation funders to develop funding models and cost structures that produce optimal returns to group members; and
• in line with the majority's suggestion, there may be an increase in the use of special referees and contradictors to assist the court in undertaking the multi-factorial analysis.

Background

The procedural history of the AMP shareholder class actions stretches back to 2018, when five substantially similar proceedings were filed in quick succession after evidence provided on behalf of AMP during the Financial Services Royal Commission (relating to a practice of charging fees for no service) was followed by a sharp decline in the AMP share price.

Wigmans was the first proceeding past the post, filed in the Supreme Court of New South Wales, with the remaining four proceedings filed in the Federal Court of Australia. Following the decision of the Full Court in Wileypark Pty Ltd v AMP Ltd,¹ the proceedings in the Federal Court were transferred to the Supreme Court. Once the proceedings were transferred, the Fernbrook and Komlotex proceedings were consolidated by agreement (Komlotex/Fernbrook), and each of the representative plaintiffs sought a stay of the other proceedings.

First instance decision

In May 2019, the Supreme Court determined that its powers under sections 67 and 183 of the Civil Procedure Act 2005 (NSW) (the CPA) allowed for a multi-factorial analysis to be used to assess which proceeding would achieve the greatest benefit for group members. The court held that the Komlotex/Fernbrook proceeding should progress, finding that the 'no-win, no-fee' structure in that proceeding was likely to result in the highest hypothetical net return for group members. The court made clear that the fact that multiple proceedings were commenced was not itself an abuse of process. (Please see our earlier Insight.)

The High Court appeal

After an unsuccessful attempt to overturn the first instance decision in the NSW Court of Appeal, Ms Wigmans sought special leave to appeal to the High Court, arguing that:

• the approach of the primary judge in granting a stay of the proceeding, in accordance with the principles set out by the Full Court of the Federal Court in Perera v GetSwift Ltd,² was not authorised by the CPA or by the inherent power of the Supreme Court, and instead represented an improper importation of a 'carriage' or 'certification' procedure from the United States;
• the primary judge and the Court of Appeal erred in failing to apply a rule or presumption that it is prima facie vexatious and oppressive to commence an action where one is pending for the same controversy, with the onus on the party bringing the later proceeding to show that it is not oppressive; and
• the primary judge erred in acting on the assumption that the Wigmans proceeding and the Komlotex/Fernbrook proceeding had an equal probability of achieving a possible settlement or judgment outcome.

The findings

Power of the court to grant a stay

Justices Gageler, Gordon and Edelman held that the source of the Supreme Court's power to grant a stay of proceedings is s67 of the CPA. Its scope is broad and relatively unconstrained, save that the court must:

• act in accordance with the dictates of justice;
• act with regard to the overriding purpose of the CPA;
• facilitate the just, quick and cheap resolution of the issues in the proceeding; and
• act with regard to the objects of case management.

Moreover, s183 of the CPA provides that the Supreme Court may make any order that it considers 'appropriate or necessary to ensure that justice is done in the proceeding'. In the context of a representative proceeding, the grant of a stay may be necessary or desirable to achieve this objective.

Presumption of first to file

Their Honours cautioned against the application of any 'first in time' rule or presumption that could lead to what they termed an 'ugly rush' to the court door, particularly where the perceived overlap between multiple proceedings was incomplete. The majority found that the general law principles concerning multiple proceedings do not support any such 'first in time' rule or presumption, and that the issue remains to be resolved by the exercise of the court's discretion, informed by all the relevant circumstances. While the order of filing remains a relevant consideration to the granting or refusal of a stay, it does not give rise to a rule or presumption.

Considerations relevant to the exercise of the power

Identifying the considerations relevant to the exercise of a power to grant a stay, the majority held that:

• multiplicity of proceedings is not to be encouraged, and may be inimical to the administration of justice;
• the factors will vary from case to case, and it will be necessary for the court to determine which proceeding is in the best interests of group members; and
• there is nothing inherently foreign to the judicial process in a court taking into account the likely success of a proceeding or the quantum of recovery. Such considerations are similar to those applied in deciding whether the bringing or defending of litigation by trustees is proper or can be justified having regard to the best interests of those to whom fiduciary duties are owed.

The multifactorial approach

The majority endorsed the primary judge's adoption of the multi-factorial approach developed in GetSwift as an appropriate means of resolving the question of competing class actions in the appeal, but noted the potential use of a special referee or contradictor to determine the successful proceeding. The majority highlighted the availability of orders providing for the consolidation of proceedings, the de-classing of one or more of the proceedings, the holding of a joint trial of all proceedings (as open classes), or a joint trial by closing the classes in all but one of the proceedings.

The minority decision

Chief Justice Kiefel and Justice Keane would have allowed the appeal and stayed the proceedings that were filed after Wigmans (including Komlotex/Fernbrook).

Their Honours held that where the proceedings filed later 'offered no legitimate juridical advantage to group members or the defendant', there was no basis to stay the earlier proceeding in favour of the one filed later. In these circumstances, concern about a 'race to the courthouse' was an 'irrelevant distraction'. They added that:

• the class actions regime (contained in Part 10 of the CPA and replicated in substantially similar terms in other Australian jurisdictions) does not contemplate the involvement of the court in deciding which law firm and funder are most likely to achieve the highest return for group members; and
• the purpose of the court's case management powers and its power to stay duplicative proceedings is to do justice between plaintiffs and defendants. Choosing among competing solicitors and funders on the plaintiff side is not in line with that purpose.

What's next?

Although the majority rejected the first-in-time rule or presumption, the order of filing remains a relevant consideration for the multi-factorial analysis, meaning that if competing class actions are under consideration by plaintiff firms and funders, defendants are likely to face multiple claims filed in short succession.