First Plaintiff v First Defendant

1 Two sets of overlapping group proceedings have been commenced against common defendants. One set of proceedings (Edwards and Sims) was commenced in the Federal Court of Australia but transferred to this Court. The opposing parties seek 'carriage' of their proceedings and stays of the competing proceedings, in order to solve the 'multiplicity' problem. In June 2023 this Court and the Federal Court of Australia made orders for a regime governing the parties' conduct of the multiplicity issue, allowing each party to state and exchange its position (the terms on which it would conduct the proceedings if awarded carriage) and to revise its position, once. The Edwards and Sims proceedings have a convoluted history which has led to complexity and delay in the management of the multiplicity issue.

2 By the present applications[1] each of Edwards and Sims seeks leave to amend their Statements of Position filed on 4 August 2023 and to amend an earlier summons seeking orders to similar effect.[2] The applications were made after Edwards and Sims appointed new solicitors. The proposed amended Statements of Position reflect the fact that Banton Group now acts for Edwards and Sims and state the terms on which Banton Group proposes to act. Relevantly, Edwards and Sims now propose to fund the proceedings by seeking a Group Costs Order under s 33ZDA of the Supreme Court Act 1986 (Vic),[3] with Banton Group funding the proceedings with the assistance of litigation funding. Edwards and Sims' previous solicitors (Bannister Law) was to fund the proceeding on a 'no win no fee' basis, with litigation funding from a third party funder. Bannister Law, for its then clients, had applied in October 2023 to amend its funding position to seek a Group Costs Order. It abandoned that application in November 2023. The present application seeks in effect to reinstate the proposed amended funding terms, but with Banton Group acting.

3 The applications are opposed by the plaintiffs in the competing proceedings (Johnston and Moroney). Those parties were treated as interveners on the amendment application.[4] The defendants adopted a neutral stance on the application, save that they express concerns about wasted costs and prejudice arising therefrom.

4 For the reasons that follow, the applications will be allowed in part.[5]

5 More specifically, the parties and proceedings are as follows.

6 On 22 December 2022 Anne‑Maree Johnston issued a group proceeding against Hyundai Motor Company Australia Pty Limited.[6] On 10 March 2023 Jane Moroney issued a group proceeding against Kia Australia Pty Limited.[7] The Johnston and Moroney proceedings were each issued in this Court. Each proceeding concerns alleged defects in the anti‑lock braking systems in vehicles supplied by the respective defendants. The group members in the Johnston proceeding are all persons who acquired[8] in Australia nominated Hyundai vehicles between nominated dates, where each vehicle was subject to a recall notice. The group members in the Moroney proceeding are similarly defined by reference to their Kia vehicles. Johnston and Moroney are each represented by Maurice Blackburn. They have been case‑managed together.

7 On 26 May 2023, Samantha Edwards and Josephine Hoppner issued a group proceeding against Hyundai Motor Company Australia Pty Limited[9] and David Sims issued a group proceeding against Kia Australia Pty Limited[10], each in the Federal Court of Australia. Each of those proceedings also concerns alleged defects in the anti‑lock braking systems in vehicles supplied by the respective defendants. The group members in the Edwards proceeding are all persons who acquired[11] a legal interest in Australia in nominated Hyundai vehicles between nominated dates, where each vehicle was subject to a recall notice.[12] The group members in the Sims proceeding are similarly defined by reference to their Kia vehicles. At the time of issuing proceedings Edwards and Sims were represented by BLCA Pty Ltd trading as Bannister Law Class Actions (Bannister Law), specifically by its principal solicitor Mr Charles Bannister.

8 The defendants in both sets of proceedings were represented by Ashurst and subsequently Quinn Emanuel. The causes of action and case theories advanced in all proceedings are substantially similar although not identical.

9 It is necessary to set out the procedural history of these matters in some detail. Although what occurred was not in issue, the significance of the procedural history went to the crux of the present dispute.

10 By late May 2023, there were then two sets of overlapping group proceedings in this Court and the Federal Court, one overlapping set issued against Hyundai and the other against Kia. For convenience I shall refer to the proceedings originally issued in this Court as the Johnston and Moroney proceedings (and to Johnston and Moroney as the plaintiffs), and to the proceedings originally issued in the Federal Court as the Edwards and Sims proceedings (and to Edwards and Sims as the plaintiffs)

11 During June 2023, Maurice Blackburn and Bannister Law exchanged correspondence regarding Edwards' and Sims' commencement proceedings in the Federal Court in circumstances in which proceedings apparently covering the field had already been commenced. Maurice Blackburn, for Johnston and Moroney, said that the most sensible course of action would be for Bannister Law's clients to apply for or consent to the transfer of their proceedings to this Court.

12 There is in place a Protocol between this Court and the Federal Court addressing measures by which proceedings involving common parties and the same or similar issues commenced at or about the same time in each jurisdiction can be cooperatively managed with a view to facilitating access to justice and the just, quick and cheap resolution of the real issues in dispute. The Protocol contemplates that the managing judges may convene a joint case management hearing, including for the purposes of receiving submissions about the appropriate management of competing proceedings.

13 On 29 June 2023, I made orders governing the procedural steps for the management and determination of the issues arising from the existence of overlapping proceedings in the two jurisdictions. Orders in substantially the same form were made in the Federal Court. In both instances the orders were made by consent. The orders directed that each provide the other with copies of their retainer and funding agreements and that by 21 July 2023 each party file a Statement of Position, in these terms:

By 21 July 2023 each party file and serve a statement of position in the form of a document not exceeding 10 pages, which sets out in summary form the position and substance the expected evidence in respect of each of the matters listed in the List of Issues at Appendix A (Statement of Position). The Statement of Position must meet the following requirements:

1. the information contained in it should be succinct, but sufficient to allow the reader to understand the essence of the plaintiff's carriage proposal;

2. on the question of funding and legal costs it should contain sufficient detail to allow the reader to meaningfully compare the plaintiff's competing proposals. It should not set out arguments as to why a plaintiff's proposal is to be preferred. It should only address the plaintiff's proposal (as opposed to the proposal of the plaintiff in the competing proceedings);

3. the topics must be addressed in the order in which they appear in the List of Issues; and

4. the plaintiffs must address each issue but should concentrate on those issues most likely to be of significance in the carriage contest. If the plaintiffs consider that an issue will be of little relevance, the key facts may be stated very briefly.

By 28 July 2023 each plaintiff party may file and serve any Revised Statement of Position in response to the [original statements of position]. Any Revised Statements of Position must:

1. conform with the requirements [applicable to the original statements of position];
2. not exceed 5 pages;
3. in respect of substantive changes only, be marked up against the original statements of position, so that changes are readily apparent.

14 The Appendix to the order listed the issues generally usually considered to be relevant in resolving carriage disputes - practitioners' experience and resources, group membership, causes of action and scope of claims, funding and legal costs, proposals for security, the state of progress of the proceedings and any other factor said to be material. The parties were directed to file and serve any interlocutory applications by 4 August 2023.

15 Concurrent hearings of this Court and the Federal Court were fixed for 10 August 2023, pursuant to the Protocol. The orders of 29 June 2023 noted that the 'joint case management hearing' (adopting the language of the protocol) would be convened to determine the appropriate procedural course to be adopted in case managing the Supreme Court and Federal Court proceedings.

16 The parties filed their respective Statements of Position on 21 July 2023 and Revised Statements of Position on 28 July 2023, in accordance with the orders of 29 June 2023 made in this Court and the Federal Court.

17 The original Statements of Position (filed 21 July 2023) addressed what the parties considered to be distinguishing features of their respective proceedings including their solicitors' respective 'track records', scope of claims and number of group members covered by the proceedings,[13] and terms for funding and legal costs. Johnston and Moroney said that there should be but was not in this case, a compelling reason for a second in time litigant to commence in a different forum to an existing proceeding.

18 For present purposes the funding terms are relevant. The joint Statement of Position for Johnston and Moroney indicated that they would each apply for a Group Costs Order (or GCO) pursuant to s 33ZDA of the Supreme Court Act 1986 (Vic) calculated at 24.75% of the recovered amount, and that Maurice Blackburn had entered a cost sharing arrangement with the funder CF FLA Australia Investments 3 (Vannin).

19 The Edwards and Sims joint Statement of Position disclosed that in each case Bannister Law had agreed to act on a conditional or 'no‑win no‑fee' (NWNF) basis and that the litigation funder LLS Australia Funding Pty Ltd (LLS) had agreed to fund 80 per cent of Bannister Law's costs, subject to a cap. Bannister Law was entitled to a 25 per cent uplift on certain fees accrued. The Statement set out rudimentary modelling that compared the results for group members of the competing funding proposals, on stated assumptions. The modelling showed a modest difference in estimated returns to group members under the proposals for the competing proceedings against Hyundai and against Kia. For the Hyundai proceedings the modelling favoured Edwards (issued in the Federal Court) and for the Kia proceedings the modelling favoured Moroney (issued in the Supreme Court).

20 Edwards and Sims Revised Statements of Position (filed 28 July 2023) reflected revised costs agreements and costs estimates, with funding on the same basis as in the original statement of position. Comparative modelling of outcomes to group members was substantially the same as in the original statement of position.

21 Johnston and Moroney proposed a modified Group Costs Order calculated on a stepped basis as follows:

22 They disagreed with the basis for the comparative modelling given by Edwards and Sims.

23 On 4 August 2023, Bannister Law served the Third Statement of Position[14] for Edwards and Sims, making relatively minor changes to the previous statement. A further revision of position had not been contemplated by the 29 June 2023 orders.

24 On 4 August 2023, pursuant to the 29 June 2023 orders, Edwards and Sims filed summonses in this Court by which they sought to transfer the Johnston and Moroney proceedings to the Federal Court pursuant to s 5(1)(b) of the Jurisdiction of Courts (Cross‑vesting) Act 1987 (Vic) and interlocutory applications in the Federal Court seeking, in the event the Victorian proceedings were transferred to the Federal Court, a permanent stay of those proceedings or, in the alternative, consolidation of those proceedings with the Edwards and Sims proceedings. On the same day Johnston and Moroney filed interlocutory applications in the Federal Court seeking leave to intervene in the proceedings in that Court and orders that those proceedings be permanently stayed. They also filed in this Court, summonses seeking their foreshadowed Group Costs Orders.

25 On 10 August 2023, a 'joint case management conference' (i.e. concurrent hearings) of this Court and the Federal Court was held, during which it was decided by both Courts that the appropriate procedural course was to first determine the transfer applications filed by Edwards and Sims in this Court. Counsel for Johnston and Moroney indicated that for the purpose of any prospective carriage contest they were content to proceed on Edwards' and Sims' Third Statement of Position dated 4 August 2023, however there should be no further opportunity for revision. I indicated that I would make an order regularising the service of the Third Statement of Position and agreed with counsel for Johnston and Moroney that Edwards and Sims should not seek to further vary their position.

26 On 15 August 2023, Bannister Law advised both Courts that in light of the matters ventilated during the case management conference they were instructed not to press the application to transfer the Johnston and Moroney proceedings to the Federal Court and would instead seek to transfer the Edwards and Sims proceedings to this Court. Bannister Law proposed timetabling orders and indicated that they proposed circulating and seeking the consent of the other parties to amended summonses.

27 In August 2023 Edwards and Sims filed amended applications in the Federal Court including applying to transfer their proceedings to this Court pursuant to s 5(4) of the Jurisdiction of Courts (Cross‑Vesting) Act 1987 (Cth), which applications were not opposed. On 15 September 2023, Bromwich J of the Federal Court made orders transferring the Edwards and Sims proceedings to this Court and consequential costs orders.[15]

28 All proceedings were listed for a case management conference to be held in this Court on 20 September 2023. The expected carriage contest was listed for 24 November 2023.

29 During August and September 2023, Maurice Blackburn pressed Bannister Law for service of their clients' foreshadowed amended summons. The parties exchanged correspondence about appropriate timetabling orders leading up to the hearing of the carriage dispute then listed for 24 November 2023, on which they were in dispute.

30 On 19 September 2023, Edwards and Sims' then litigation funder (LLS) wrote to each of them giving notice of termination of the litigation funding agreements for each proceeding. The LLS letter relevantly stated that 'on 18 September 2023, Bannister Law ... advised LLS that they intend to seek a group costs order and pursue the Hyundai [and Kia] Class Action[s] on a "No‑Win No‑Fee" basis. As such, it is no longer commercially viable for LLS to provide litigation funding for the Hyundai [and Kia] Class Action[s]'.

31 On 19 September 2023, Bannister Law sent a letter to Maurice Blackburn and Ashurst advising that Bannister Law had been in merger discussions with the law firm Pogust Goodhead, and that the merger was expected to occur within the next two weeks. Bannister Law indicated that following the merger it was expected that Pogust Goodhead (through its new Australian entity) would be the solicitor on the record for Edwards and Sims in the newly transferred proceedings and would take over funding of the proceedings from LLS.

32 On 20 September 2023, at the case management conference before me, the existence of the prospective merger between Bannister Law and Pogust Goodhead and the implications of that merger were ventilated. This was the first occasion on which the Court was notified of the proposed change of lawyers for Edwards and Sims. Counsel for Edwards and Sims said that it was intended that the funding arrangements for those proceedings would be different from the arrangement described in the existing Third Statement of Position, in that Edwards and Sims now intended to seek a Group Costs Order but that instructions in respect of the terms on which the proceedings would be advanced 'were still being finalised'. The timetabling orders that Edwards and Sims had proposed did not provide for them to seek to file a further revised Statement of Position in advance of the parties filing material in support of the carriage contest. The consequence would be that Johnston and Moroney and their lawyers would learn for the first time about the revised funding position when they were served with Edwards and Sims' material in support of their application for a stay of the Johnston and Moroney proceedings and for carriage of the remaining proceedings. Counsel for Edwards and Sims indicated that while the merger was expected to be completed within weeks, the completion date could not be guaranteed. It was submitted that Johnston and Moroney and their lawyers could deal with the new position that would be revealed in the material to be filed by Edwards and Sims, in reply.

33 Johnston and Moroney submitted that that situation was seriously prejudicial to them, causing them to have to contest the multiplicity issues without knowing what they were contesting and would be unfairly wasteful of costs, and that Edwards and Sims should not be permitted to continue to change their position and the basis on which they were seeking to win carriage. It was submitted that Edwards and Sims should be required to apply to amend their Statement of Position, with appropriate disclosure. I agreed, I considered that the course proposed by Edwards and Sims was likely to be productive of real unfairness, wasted costs and unnecessary consumption of court resources. I ordered that by 6 October 2023 Edwards and Sims file and serve any summons seeking leave to amend their Third Statement of Position and their summons filed on 4 August 2023, with related orders for the filing of material. Johnston and Moroney expressed concerns about the extent to which changes in the Edwards and Sims camp had been disclosed to them.

34 On 14 October 2023 (pursuant to the orders made 20 September 2023 as later extended) Bannister Law, for Edwards and Sims, filed and served applications for leave to amend, including among other things a proposed Fourth Statement of Position (the October Leave to Amend Application). By the application Edwards and Sims sought orders staying the Johnston and Moroney proceedings (and by implication, permitting the Edwards and Sims proceedings to continue in this Court) or in the alternative, consolidating both sets of proceedings with Pogust Goodhead (Australia) Pty Ltd (PGA) appointed as solicitors for the consolidated proceedings or alternatively, permitting both PGA and Maurice Blackburn to remain on the record. The proposed Fourth Statement of Position for Edwards and Sims indicated that they would seek a Group Costs Order in their respective proceedings, configured on a stepped‑down basis calculated as follows:

18% (including GST) of any award or settlement up to and including $100,000,000;

plus 14% (including GST) of any part of an award or settlement recovered above $100,000,000 but less than or equal to $150,000,000;

plus 12% (including GST) of any part of an award or settlement recovered above $150,000,000.

35 The application was supported by an affidavit of Thomas Goodhead of Pogust Goodhead, a firm registered in the United Kingdom. Mr Goodhead said that in October 2023 Bannister Law and Pogust Goodhead had agreed to merge and form a new entity operating in Australia under the name Pogust Goodhead (Australia) Pty Ltd (PGA) and that the parties were then still finalising arrangements to give effect to that agreement with the intention that PGA would be operational from 23 October 2023. PGA had been incorporated on 3 October 2023 and had not yet received approval from the New South Wales Law Society.

36 Mr Goodhead said that he had been informed by Mr Bannister that the plaintiffs had agreed to enter into new retainer agreements with PGA once it had received approval to commence legal practice. Mr Goodhead said that he had been informed by Mr Bannister that further, by 'letter agreement' between LLS, Pogust Goodhead Philadelphia LLC and Bannister Law, 'the previous litigation funding arrangements for the proceeding were 'terminated on the basis it is intended to conduct the proceedings on a contingency basis without litigation funding'. Mr Goodhead also said, however, that Pogust Goodhead was in discussions with a litigation funder in respect of funding that was envisaged would cover the Edwards and Sims proceedings.

37 Exhibited to Mr Goodhead's affidavit was a letter dated 19 September 2023 from LLS addressed to Mr Bannister and Bannister Law and Mr Goodhead and Pogust Goodhead Philadelphia LLC. LLS said that they had been informed by Bannister Law and Pogust Goodhead that they intended to pursue the claims on a contingency basis and without litigation funding, and set out terms said to have been agreed between LLS, Bannister Law and Pogust Goodhead. The terms included Pogust Goodhead reimbursing LLS for funding provided to date and providing certain indemnities, and agreement to vary the funding agreements to which LLS and the plaintiffs were party. (implicitly, to seek to procure such variations). The letter was executed by each party. Also exhibited were letters from LLS to the plaintiffs in the Edwards and Sims proceedings, also dated 19 September 2023, referring to the fact that Bannister Law had advised LLS (on 18 September) that it intended to seek Group Costs Orders and pursue the proceedings on a no win no fee basis, such that it was no longer commercially viable for LLS to provide litigation funding for the proceedings. LLS sought the plaintiffs' written consent to vary the funding agreements to remove certain obligations of LLS in respect of adverse costs orders and in respect of certain accrued costs. By those letters LLS gave notice that it was terminating the funding agreements.

38 Mr Goodhead said that Pogust Goodhead [16] had the financial resources necessary for PGA to conduct the proceedings and would fund the proceedings unless and until it secured any specific funding arrangements.

39 The material in support of the October Leave to Amend Application made no reference to the existing Statements of Position filed for Edwards and Sims. The implication to be drawn from the application and its supporting material was that the proposed new merged entity PGA preferred to fund the proceeding on the basis of Group Costs Order rather than the NWNF plus funding basis on which Bannister Law had been proceeding. Mr Bannister did not give evidence in support of the application. Neither of the plaintiffs gave evidence in support of the application.

40 In late October and early December 2023 Maurice Blackburn issued subpoenas to Bannister Law, Class Action Pty Ltd, PGA, three LLS‑related entities, Banton Group and Mr Bannister, seeking (in substance) documents concerning changes to the funding arrangements for the proceedings and dealings between relevant parties. Some of the documents produced pursuant to those subpoenas were in evidence on this application.

41 In an affidavit sworn on 1 November 2023, Ms Rebecca Gilsenan, of Maurice Blackburn, solicitors for Johnston and Moroney, gave evidence that about the implications of the change of position by Edwards and Sims. Ms Gilsenan said that she understood the orders of 29 June 2023 by which the parties were to file Statements of Position followed by revised Statements of Position before filing any interlocutory application in respect of the multiplicity issue, to require the plaintiff parties to seek to narrow the factual and legal issues for consideration by the Court and to give each of the plaintiff parties one opportunity and one only, to modify the 'commercial terms' on which they sought to be awarded carriage.

42 Her evidence was that from the perspective of her clients and Maurice Blackburn there were several unresolved or unknown matters arising from the October Leave to Amend Application and that various investigations would need to be conducted in order to address those matters before the multiplicity issue could be fairly determined. Those matters included the financial position of PGA and related entities, and PGA's proposed staffing structure and resources. Those things were not ascertainable from the material filed in support of the application. The Goodhead affidavit described a number of critical arrangements as being incomplete, including the status of PGA (not yet approved to commence legal practice), funding arrangements and retainers between PGA and the plaintiffs who were still at that time, clients of Bannister Law.

43 Ms Gilsenan said that her clients would require time to investigate those matters and then prepare their evidence on the substantive carriage dispute. The extent of the necessary inquiries could not be determined until production was made under the subpoenas. In the circumstances it would be unlikely that any substantive carriage dispute could be heard before the end of term 2023, including because the counsel team for Johnston and Moroney had availability constraints in December.

44 Ms Gilsenan's evidence was that her clients had incurred significant legal costs in reviewing and responding to the Edwards and Sims Statements of Position. Costs had been incurred in time‑intensive work to consider the Bannister Law position and arrive at a responsive position, briefing counsel and appearances, and related correspondence. A substantial proportion of those costs would be thrown away if leave to amend were granted. Further significant costs would be incurred in responding to the application. Application would be made for Edwards and Sims to pay the costs forthwith, or in the alternative orders would be sought against non‑parties who stood to benefit from their proceedings.[17] Furthermore, legal costs incurred on behalf of Johnston and Moroney in relation to the carriage dispute more broadly would be thrown away if Edwards and Sims were permitted to fundamentally alter their position.

45 On 7 November 2023, Pogust Goodhead wrote to Bannister Law, Maurice Blackburn and Quinn Emanuel that the proposed merger between Bannister Law and Pogust Goodhead, as contemplated in the Fourth Statement of Position dated 14 October 2023, would not in fact be completed, and that PGA would not be funding or taking over conduct of the Edwards and Sims proceedings and did not intend to play any part with respect to any application for carriage of the proceedings in this Court. Pogust Goodhead said only that the proposed merger could not be completed 'due to reasons could not have been anticipated by Mr Goodhead, including those ventilated at [a] "without prejudice" meeting convened on 6 November 2023'.

46 On 8 November 2023, Maurice Blackburn wrote to Bannister Law asking whether Edwards and Sims would now withdraw all summonses in respect of carriage or take any other steps.

47 On 9 November 2023, Bannister Law emailed Maurice Blackburn confirming that the proposed merger of Bannister Law and Pogust Goodhead was no longer proceeding, and said that they were seeking instructions to withdraw the summons. On the same day Maurice Blackburn sought clarification as to whether Bannister Law was seeking instructions to withdraw all extant and proposed summonses. After being further pressed by Maurice Blackburn, on 10 November 2023 Bannister Law said that it was seeking instructions to withdraw the 14 October 2023 summonses, and that it was 'considering the underlying proceedings' and would revert once instructions were obtained.

48 On 13 November 2023, Bannister Law notified my chambers by email that the proposed merger between Bannister Law and Pogust Goodhead would not be proceeding and that Pogust Goodhead would not be funding or taking over the conduct of the Edwards and Sims proceedings. Bannister Law advised that it had been unable to contact its clients in order to obtain instructions but was seeking instructions to withdraw the proposed summonses filed on 14 October 2023 and requested until close of business on 14 November 2023 to do so.

49 On 16 November 2023 Bannister Law advised Maurice Blackburn and Quinn Emanuel that it was anticipated that Edwards and Sims would instruct Amanda Banton of Banton Group to act for them and that Ms Banton would file an appearance, a further summons and a proposed further amended statement of position the next day.

50 On 17 November 2023, Banton Group filed notices of change of solicitors for each of the Edwards and Sims proceedings, after receiving instructions to act from each plaintiff. On the same day Banton Group provided to my chambers proposed summonses (17 November 2023 Summonses) in the Edwards and Sims proceedings seeking leave to amend the 14 October 2023 summonses (November Leave to Amend Application).[18] On 19 November 2023, Banton Group submitted to my chambers a proposed further revised statement of position for Edwards and Sims (proposed Fifth Statement of Position).

51 By the 17 November 2023 Summonses Sims and Edwards seek leave to amend their Third Statement of Position filed on 4 August 2023. The costs regime for the proceeding is the same in substance as that set out in the Fourth Statement of Position - namely a Group Costs Order on the same stepped‑down basis at the same rates, but with Banton Group acting as solicitors, with Amanda Banton having senior oversight of the proceedings. It is proposed that funding for the proceeding be provided by Banton Group and by a cashflow finance facility between Banton Group and International Litigation Partners No. 22 Pte Ltd (an entity within the International Litigation Partners group) (ILP) which is said to entitle Banton Group to draw funding up to a stated limited for these proceedings.

52 Ms Banton swore two affidavits in support of the amendment application.[19]

53 Ms Banton explained her professional experience and that of Banton Group and its lawyers. She said that it was proposed to seek Group Costs Orders on the basis set out in the Fifth Statement of Position. She explained the terms of the financing agreement between Banton Group and ILP and described the available financial resources in respect of the proceedings. The agreements governing the proposed funding arrangements are described further below. Ms Banton set out a table comparing the estimated returns to group members under the Banton‑Group proposed GCO and that proposed by Maurie Blackburn for Johnston and Moroney. The Banton Group - Edwards and Sims proposed GCO rates are lower. Depending upon the resolution sum, the result to group members would be between 105.1% and 109% of the Johnston and Moroney proposal.

54 Ms Banton gave evidence about matters raised in certain documents produced in response to the subpoenas issued by Maurice Blackburn, explaining her dealings with Mr Bannister and how her firm came to be involved in these proceedings. Those dealings, as established by Ms Banton's evidence and the documents tendered by the parties, were as follows.

55 Ms Banton said that she first met Mr Bannister approximately 20 years ago but had not had any significant dealings with him until May 2023, when he spoke to her briefly a few times about some form of cooperation between or amalgamation of their firms, but that nothing of substance eventuated. She did not recall that Mr Bannister mentioned the present proceedings to her.

56 Email correspondence produced pursuant to subpoenas issued to Bannister Law and Mr Bannister revealed that Mr Bannister and Ms Banton had been in contact in April and May 2023. On 26 April 2023, Mr Bannister wrote to Ms Banton saying,

We are the solicitor on the record for the Mitsubishi class action and we have an agreement with Maurice Blackburn for the Medibank matter. We are signing leads and have funding for the matter of Hyundai‑Kia - ABS recall but there will be a beauty contest (we will stand a better chance in that if we combined with a firm as anticipated in this transaction).

57 Ms Banton's reply (the date of which was not disclosed on the documents in evidence) was,

Hi, how do you think we could retain the Medibank matter? What are the court orders in that? Do you have the matter numbers so I can look at the court files?

58 On 15 May 2023, Mr Bannister wrote to Ms Banton saying,

I have a new case that I have emailed the states about that came in over night and I have set to Woodsford also. We are hoping to file the HK case this week.

Have you considered a level for advance against WIP and the possible % on your side for fees?

We could hourly rate you for your work on matters. For a prepackaged case what do you think that would include?

60 On 20 May 2023 Ms Banton wrote to Mr Bannister saying that, 'the UK merger would be a good idea ...'

61 On 5 July 2023 Mr Bannister emailed Stephen Conrad and Mark Arbib of LLS and said,

I have just returned from the UK where I met with the UK/USA firm that we are merging with our firm.

62 LLS told Maurice Blackburn in answer to its query that it first became aware of a potential merger between Bannister Law and another firm (which is now assumes to have been a reference to Pogust Goodhead) on or about 5 July 2023.

63 It appears that Mr Bannister next contacted Ms Banton on 24 October 2023 (i.e. 10 days after the 14 October 2023 Leave to Amend Application and 14 days before Pogust Goodhead notified the parties of the discontinuance of the proposed merger). On that date Mr Bannister emailed to ask whether she was free to talk the next day, to which she replied that she was free to talk.

64 On 9 November 2023 (two days after Pogust Goodhead notified the parties of the discontinuance of the proposed merger), Mr Bannister emailed Ms Banton to request an 'urgent' call with her, to which Ms Banton agreed. Mr Bannister added shortly afterwards that,

the reason its urgent is that I have to pull out of a beauty contest that you may be interested in stepping into with me, by today.

65 Ms Banton's evidence was that this was the first communication she had from Mr Bannister which related to his withdrawal from the Edwards and Sims proceedings and the proposed involvement of Banton Group. Ms Banton's evidence was that she did not know what Mr Bannister meant by the words 'with me' in his email, and that she did not anticipate (nor did they ever discuss) that Mr Bannister would have an ongoing role other than being potentially engaged in a consulting capacity (discussed below).

66 Ms Banton's evidence was that following her email exchange with Mr Bannister on 9 November 2023, Mr Bannister called her and informed her that the merger between Bannister Law and Pogust Goodhead was no longer proceeding, and that Bannister Law was not able to continue to act. Mr Bannister asked whether Banton Group would be prepared to act for his clients, and if so on what terms. Mr Bannister did not give evidence about his withdrawal from the proceedings (or about any other relevant issue, for that matter). No explanation was given about Bannister Law being unable to continue to act, save that according to Ms Banton, Mr Bannister told her that 'his focus was now on origination of proceedings rather than on running a legal practice'. According to Ms Banton, Mr Bannister also asked whether, if Banton Group was going to act, if he or Bannister Law could enter into an agreement with any funder or lender that Banton Group secured to receive a portion of any percentage share of any resolution sum ultimately obtained by any funder or lender in the proceedings. Ms Banton said that no such deal has been entered into with or between Mr Bannister, Bannister Law or ILP.

67 On 10 November 2023, Ms Banton sent Mr Bannister an SMS text message which read, 'Charles, we would be willing to take over your claim and do the carriage and you can negotiate a deal with the finder [sic] from proceeds. And pay referral fees on cases referred. We don't want to blow capital paying your wip'. Ms Banton's evidence was that that email was in fact only intended to convey the 'high level' position that Banton Group would be prepared to take if it acted, and that Banton Group had not yet taken or agreed to take instructions from Edwards and Sims or undertaken necessary due diligence to enable it to do so. She said further that the email had been intended to indicate that Mr Bannister could seek to negotiate with 'any funder or lender that [Banton Group] secured' regarding his request for a percentage of any resolution sum or to be paid referral fees and that Banton Group did not want to pay for Bannister Law's work in progress for the work done to date.

68 Ms Banton said that between 9 to 16 November 2023, she and her staff conducted due diligence in relation to the proceedings to determine whether Banton Group would be prepared to accept instructions. Her evidence was that 'during this period I first became aware of the terms of the carriage proposal set out by Bannister law and the evidence of Tom Goodhead on 14 October 2023'.

69 On 16 November 2023, Banton Group solicitor Athony Krensel sent an email to Mr Bannister requesting that Bannister Law provide unredacted copies of both of Maurice Blackburn's statements of position, all of Bannister Law's old statements of position, affidavit of Thomas Goodhead and exhibits, affidavit of Rebecca Gilsenan and exhibits, recent correspondence between the parties and the Court and correspondence with Pogust Goodhead and PGA, and relevant retainer agreements.

70 On 16 November 2023 at 9.33am, Mr Bannister sent an email to Ms Banton which read,

Can we agree on what my consultancy terms are and what the back‑end clip is before I hand over my clients? And do you just want to speak to them with me? I know this is all assuming that Monday goes well, but once I hand over my clients I have nothing left and would like an idea of where I stand before we transfer, which I think is fair.

71 Ms Banton's evidence was that she did not respond to that email, and told Mr Bannister during a phone call that day that it was important to deal with his clients' position as a matter of urgency.

72 In relation to the terms on which Banton Group agreed to act in the proceeding, Ms Banton's evidence was as follows:

Ultimately I concluded that, notwithstanding the complex procedural history of the matter and the carriage contest to date, it was plainly in the interests of group members that the 18% GCO pricing proposed in the summons filed by Bannister Law on 14 October 2023 was in the interests of group members.

I determined that Banton Group was prepared to proceed on those terms.

73 Ms Bannister said that during the course of 16 November 2023 she determined that Banton Group was prepared to accept instructions from Edwards and Sims and that that evening Mr Bannister told her by email that the plaintiffs were prepared to instruct Banton Group. The other parties were advised that it was anticipated that Banton Group would be instructed to act in the proceedings and would file appearances the next day.

74 On 17 November 2023, Banton Group entered into a financing agreement with ILP to facilitate Banton Group meeting any costs obligations in the proceedings (as noted earlier).

75 On 17 November 2023, Banton Group entered into retainer agreement with the plaintiffs in the Edwards and Sims proceedings. Relevantly, the agreements each provide that:

(a) Banton Group is engaged to act in claims against Kia and Hyundai and work towards obtaining a Group Costs Order on the plaintiffs' behalf. The plaintiffs are represented on an interim 'no win no fee' basis.

(b) If GCO's are not obtained, Banton Group may seek alternative funding arrangements for the conduct of the proceeding including negotiating on behalf of the plaintiff to secure third party litigation funding. In the alternative, Banton Group may terminate the retainer with immediate effect, or the parties may agree to amend the retainer. If Banton Group intends to terminate the retainer because no GCO has been made, Banton Group will seek the plaintiffs' instructions to discontinue the proceedings before terminating the proceedings.

(c) If a GCO is made Banton Group will become liable to indemnify the plaintiffs for any adverse costs orders payable by them to the defendants, and Banton Group may enter into a third party finance agreement to meet some or all of those costs.

(d) Subject to any Court order to the contrary, Banton Group will not be liable for any costs incurred by and payable to the plaintiffs' prior legal representatives including Bannister Law, or any adverse costs claimed by, agreed with or awarded to the defendants in the proceeding that were incurred prior to the commencement of the retainer.

76 On or about 30 November 2023, the plaintiffs, Banton Group and Bannister Law agreed to enter into Tripartite Deeds (one for each proceeding) to facilitate the transfer of the plaintiffs' files from Bannister Law to Banton Group. The deeds provided in substance that:

(a) Bannister acted for the client until its retainer was terminated. The client owes costs to Bannister Law pursuant to that retainer. Bannister Law retains a general lien over the documents in the matter but agrees to transfer the file upon satisfactory security for the costs. Upon receipt of money from the defendants, availability of cleared funds and subject to the provisions of the Uniform Law, Banton Group agrees to pay Bannister Law's outstanding costs from those moneys, in an amount to be agreed between Bannister Law and the client and if that amount is not agreed, to keep the amount claimed by Bannister in trust until resolution.

(b) Banton Group will pay to Bannister Law an advance of $5,000 on account of the costs owing, to be deducted from the payment out of any money received from the defendants, recognising that Bannister Law had incurred costs and disbursements, including in relation to the preparation of the statement of claim by counsel;

(c) if the amount of Bannister Law's claimed entitlement to costs is not agreed by the plaintiffs for work undertaken prior to 17 November 2023, then it will be assessed by the Court; and

(d) the deeds continue in force until Bannister Law's costs have been paid.

77 Ms Banton's evidence was that she 'intends to make reasonable efforts to recover from the defendants the unpaid incurred costs (WIP and disbursements) that Bannister Law had incurred in work done to date that was in the interests of the plaintiffs and group members, to be assessed if not agreed with the paying party'.

78 Ms Banton's evidence was that the Tripartite Deeds are the only binding agreements between Bannister Law and Banton Group or herself in relation to these proceedings, and that neither Mr Bannister, Bannister Law, nor any entity or individual related to them, has any financial interest in the outcome of these proceedings aside from the Tripartite Deeds.

79 The proposed Fifth Statement of Position states that, 'Banton Group intends to retain Charles Bannister personally to the extent necessary, in order to continue to make use of his accumulated experience in relation to automotive claims and the work done in relation to the proceedings to date'. Ms Banton's evidence was that Mr Bannister had not been so retained as of 20 November 2023 and that such retainer would be a 'standard consulting lawyer agreement with Mr Bannister providing advice from the extensive time he has spent investigating this and other automotive cases previously, and with his costs to be incurred on an hourly basis in the usual way at the same rate as he charged when doing work on behalf of Bannister Law'. Ms Banton 's opinion was that an arrangement with Mr Bannister would be in the interests of group members because the ability to draw on Mr Bannister's knowledge of similar proceedings would offer costs savings to her clients and the group members. However, Ms Banton was still evaluating the extent to which Mr Bannister's future involvement may be in the interest of her clients, and no agreement or arrangement has been formalised.

80 Ms Banton's evidence was that she was not prepared to undertake these proceedings on a 'no win no fee' basis beyond the hearing of the Group Costs Order and determination of multiplicity issues because as she put it, 'the risk and cost to the firm is too great when compared to the comparatively limited reward of proceeding pursuant to that approach'. What that risk and cost entailed was not further elaborated.

81 The plaintiffs Ms Edwards and Ms Hoppner and Mr Sims did not themselves give evidence in support of the present application (or the October Leave to Amend Application). Mr Bannister did not give evidence in relation to any application.

82 In response to the November Leave to Amend Application, Ms Gilsenan for Maruice Blackburn gave further evidence, in which she said that she considered it would be necessary to investigate and make inquiries about a number of matters arising from that application, including in relation to the financial arrangements between Banton Group and ILP, and that for a range of reasons it would be some time before carriage contest could be heard. She said further that if the leave application was dismissed 'with the result that the Transferred Plaintiffs' application for carriage of these proceedings is also dismissed or withdrawn', she would expect the substantive proceedings to be able to progressed expeditiously in 2024.

83 Ms Gilsenan gave further evidence about wasted costs, describing work undertaken in considering and responding to the latest leave to amend application. She provided a confidential estimate of Maurice Blackburn's recorded work in progress between 10 August and 30 November 2023, which she considered would not have been incurred but for the conduct on which Edwards and Sims had embarked by multiple changes of position.

84 The defendants' solicitor, Andrew Corkhill of Quinn Emanuel, affirmed an affidavit in response to the November Leave to Amend Application.

85 Mr Corkhill's evidence was that Edwards and Sims' repeated amendments to their position and the uncertainty regarding their changing legal representation had caused the defendants to incur significant legal costs in relation to the pending carriage motion and the amendments summons. Those plaintiffs had not indicated whether as a condition of granting leave to amend the Third Statement of Position and summonses filed on 4 August 2023 they would agree to pay the defendants' costs thrown away by reason of the repeated amendments to their position, and the defendants' costs of the amendment summons.

86 Mr Corkhill noted that Banton's Group's retainer agreement with their clients provides that Banton Group is not liable to indemnify the plaintiffs for any adverse costs claimed by, agreed with or awarded to the defendants in the proceedings incurred prior to 17 November 2023, and it is unclear whether Edwards and Sims had any ability to pay costs themselves. The defendants wished to have the opportunity to consider whether any special costs orders should be sought against a third party, in which case notice would need to be given to such third parties.

87 Edwards and Sims made the following submissions.

88 Previous proposals for carriage advanced on behalf of the plaintiff in proceedings S ECI 2023 04365 and S ECI 2023 04370 have fallen through, primarily due to the termination of Bannister Law's initial funding and then the recent failure of the proposed merger between BLCAS and Pogust Goodhead. In its place, Banton Group, a well‑resourced and experienced team has agreed to step into the breach with the same advantageous rates proposed by Bannister Law in the earlier proposed Fourth Statement of Position.

89 The amendments are sought to ensure that the relevant documents, the statements of position, can accurately reflect the change of circumstances being that a new solicitor has come onto the record and that the carriage proposal is consistent with what the new solicitor can carry forward in the proceedings. Those changes flow from the change of solicitor. If the amendments are made they will allow a carriage dispute to occur. If the Johnston and Moroney position is adopted, there will no 'carriage dispute'. That is the intent of their opposition to the amendment application. If that occurs the Court will not have the opportunity to consider the merits of the competing proceeding. That being so, group members will have lost the opportunity to have any benefit arising from the process.

90 Edwards and Sims understand and accept that the events leading up to the present amendment application are less than ideal, to put it mildly. But while the orderly management of carriage disputes is important, there are other considerations to take into account. The reasons for the interruption to that orderly management, are relevant and should be taken into account. In this case, a former solicitor (Bannister Law) was ultimately not able to carry the proceedings forward and a new solicitor has stepped in. Banton Group is unconnected to Bannister Law and has stepped into the breach where the intended merger failed and it was unable to continue carriage of the Edwards and Sims proceedings. That happens from time to time in litigation and will often create an interruption of some kind because new solicitors have to get on top of material. These things are usually accommodated.

91 As to unacceptable delay and prejudice, Edwards and Sims do not take issue with the fact that changes to their position has been less than orderly and has caused delay. The question is whether that fact should now mean they don't progress. Delay is a factor, but the Court also needs to countenance other considerations. Furthermore, the delay that has been identified is not so great. A carriage contest might have occurred in November had things occurred in a more orderly fashion.

92 It is also accepted that Bannister Law's conduct of the multiplicity contest may have caused Johnston and Moroney to incur unnecessary costs in responding to the various proposals advanced. However, such a complaint may be remedied by an order as to costs, and ought not shut out group members from having the court consider and properly test, competing proposals. There will be a question as to what orders will be appropriate given the different entities that have been involved and the change of solicitor. As Senior Counsel for Edwards and Sims put it, 'there will be some complexity associated with that' and there will be some questions, for example, about whether an order should be made in relation to Bannister Law, or in relation to the other entities that were involved and a 'complex question to do with costs to date'. That those questions will arise is not a good reason to refuse the amendment application.

93 Senior Counsel for Edwards and Sims accepted that questions of conduct of the proceedings including delay and wasted costs, would properly inform the Court's consideration of the appropriate resolution of the multiplicity issue (i.e. as the parties put it, the 'carriage contest'), were leave granted to amend.

94 Johnston and Moroney have relied upon the proposition discussed in Maglio v Hino Motor Sales Australia Pty Ltd; McCoy v Hino Motors Pty Ltd.[20] That case did not involve these circumstances. There was no change of solicitor in issue. The public policy argument advanced by Johnston and Moroney concerning the importance of the procedural regime established by the 29 June 2023 orders - that parties have only one opportunity to bid and one to re‑bid, come what may, is too harsh and too stark. It is lacking in nuance and does not allow the Court to do what courts always should do, which is to look at the circumstances which lead in a particular case to a party identifying why it needs to changes its bid. In some cases, a change of position will not be appropriate and in others it will.

95 The evidence demonstrates an arms‑length dealing during which Banton Group refused Bannister Law's attempt to obtain agreement as to any remuneration or reward beyond its existing entitlement to costs for work already performed on behalf of Edwards and Sims. Since accepting instructions Banton Group has demonstrated that it has the resources and the commitment to right the ship and conduct an orderly carriage contest should it be granted leave to amend. Banton Group and Edwards and Sims ought not be tarnished by historical delay whilst Bannister Law was at the helm.

96 In these group proceedings there is a need to have regard to the interests of group members more broadly. The Banton Group - Edwards and Sims proposal will provide a better financial outcome to group members when compared to the only alternative, that proposed by Maurice Blackburn. The GCO rate differential is significant. Senior Counsel described this difference as 'more than a $6 million question' (calculated on a hypothetical $100 million resolution sum, group members would receive an additional $6.75 million under the Banton Group proposal). The delays and difficulties caused by changing circumstances in the Edwards and Sims camp had to be accepted, but they preceded Banton Group's involvement and it would prejudice group members for the Edwards and Sims proceedings to be shut out of a carriage contest.

97 Johnston and Moroney refer to authorities to the effect that there is a public interest in requiring parties to be held to their positions in litigation, particularly where both parties are proceeding on the basis of a consensual arrangement (for example where settlements are agreed[21]). To the extent that Johnston and Moroney contend that those principles would preclude Edwards and Sims amending their application, they are inapplicable to these circumstances. There is no attempt here to set aside an order made by consent. Rather, leave is being sought to amend a Statement of Position to reflect a change of circumstances.

98 Johnston and Moroney submitted that there has been lack of an appropriate and transparent explanation about the events relevant to the changing positions, representation and dealings between Edwards and Sims' successive solicitors and funders. There is a need for caution in assessing those submissions. What is required on this application is an explanation as to why the amendment is sought and what has happened. It is clear on the evidence why the amendments are sought and what has happened. On 9 November 2023, Bannister Law told Amanda Banton that they were not going to be able to continue and asked whether Banton Group have any interest, after due diligence, in coming onto the record. That is what occurred. After conducting due diligence and taking instructions from the plaintiffs, Banton Group commenced acting for Edwards and Sims. Banton Group's involvement has been adequately explained on the material. Ms Banton was told by Mr Bannister that the merger was not going to proceed and that Bannister Law could not act. It can be seen that that occurred because the proposed merger did not proceed.

99 There is no basis to say that the Edwards and Sims plaintiffs were somehow privy to or involved in Mr Bannister's own decision about the future of his law firm and his financial capabilities. They were represented by him. He made a decision that he could no longer act. The failed merger is an obvious reason for that to occur and Banton Group steps in. There is evidence of all of those matters on the application.

100 Johnston and Moroney have raised what they have described in submissions as 'serious matters' about disclosure but then go on to say that there is no need for the Court to make findings at this stage as to whether the conduct was in breach of any law or rule of ethics. The Court should not entertain any suggestion about any breach of law or rule of ethics If those or similar contentions are advanced in a further stage of the proceeding, it will need to be understood precisely what findings are sought and there must be an opportunity to put forward their position based on evidence.

101 There is, for example, no foundation for a submission that Banton Group's conduct was somehow directed to ensuring that Mr Bannister received his cut of the costs of the proceedings. His personal motivations are a matter for him. But there is no basis to suggest that Banton Group was looking at becoming involved for the reasons that are suggested in the submissions. Similarly, there is no basis for any submission that Edwards and Sims, Banton Group or Bannister Law have entered into any arrangements that may have misled the court or amounted to a breach of their overarching obligations. As to the submission that the plaintiffs are not to be regarded as 'innocent' of such conduct, there is no basis on the evidence for a conclusion that any person (plaintiff or lawyer) has engaged in misconduct. If there are issues that arise in respect of solicitor conduct, they need to be laid out fairly, so that there can be a proper opportunity to respond.

102 In the course of argument I inquired of counsel as to what would be the consequence of a refusal of leave, meaning whether Edwards and Sims and Banton Group would wish to proceed if they were only permitted to proceed on the proposal that was in place before the leave application was made (the Third Statement of Position). After taking instructions I was informed that although the position that the amendment ought be allowed was maintained, if the Court was not prepared to proceed on the basis of the amended position, Edwards and Sims and Banton Group were content to proceed on the 4 August 2023 proposal (as reflected in the Third Statement of Position). If that course were taken, Banton Group would conduct the proceedings but the commercial terms on which the 'carriage contest' occurs will not change.

103 Johnston and Moroney submitted that leave should be refused because:

(a) It would be inconsistent with the orders already made by the Court to program the orderly resolution of the carriage dispute and the consent of Johnston and Moroney to that process, and inconsistent with orderly case management principles;

(b) It is the conduct of the plaintiffs that is the correct focus of the analysis of the issues relevant to this application; they are accountable for steps taken in their names, by their solicitors;

(c) There has been no adequate explanation for the numerous changes of position;

(d) The conduct of Edwards and Sims has already occasioned substantial delay and unacceptable prejudice; granting leave to amend will compound those effects. Substantial costs have already been wasted and further costs would be thrown away if Edwards and Sims were permitted to change their position. No satisfactory resolution in respect of costs has been proffered. No‑one has actually offered to meet the costs thrown away by reason of the plaintiffs' changes of position;

(e) It has not been demonstrated that it is necessary to permit leave to amend in order to protect group members' interests.

105 The 29 June 2023 orders were careful and thorough and provided a regime which would govern the carriage contest in a deliberate way which allowed each competing party to commit to the terms on which that party would conduct the proceeding if awarded carriage, then revise it once and once only. Edwards and Sims consented to that regime. There could be no doubt that they understood the basis upon which the multiplicity dispute was proceeding.

106 Substantially similar orders were made in Lidgett v Downer EDI Ltd[22] and in Maglio v Hino Motor Sales Australia Pty Ltd; McCoy v Hino Motors Pty Ltd.[23] In Lidgett, Delany J described the orders as being 'designed to encourage each party to put forward their best proposal, the proposal that would best advance the interests of group members'. As Osborne J said in Hino, the orders contemplated a competitive element with the possibility that one or other party could submit a second proposal.[24] In Hino, one plaintiff party sought to rely on a further funding proposal with revised funding terms, and evidence in support of that position. The party seeking leave submitted that allowing revised terms would be of benefit to group members. Osborne J refused leave, saying,

To now allow the Maglio plaintiffs to seek to match a funding proposal advanced by the McCoy plaintiff in accordance with an agreed regime imposed by Court orders would have the effect of undermining the open 'conditions of tender' agreed upon by the parties and reflected in the 8 September orders. It would permit one party alone the opportunity of in effect obtaining the valuable right to make the last bid. Although that is not the case here, if such a practice is encouraged, it is not difficult to imagine that in other cases, such late bids may then prompt the other party to seek a like indulgence and so on. Such a course substantially undermines the process the subject of the 8 September Orders.[25]

107 Osborne J said that where the orders contemplate as an initial step that each plaintiff party shall serve statements of position which set out in summary form the substance of the expected evidence to be given and which expressly allows for each plaintiff party to file and serve any revised statement of position in response, 'there will be a heavy burden on any party to seeking to rely on evidence filed otherwise than in accordance with [the orders]'.[26] As discussed in Hino, a regime of this kind is grounded in case management principles that reflect the overarching purpose of facilitating the just, efficient, time and cost effective resolution of the real issues in dispute.[27] This case does not in any real sense present facts relevantly different from those in Hino.

108 Rule 36.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules) provides that the Court may grant leave to amend a document in a proceeding for the purposes of determining the real question in controversy in the proceedings. That discretionary power must be exercised having regard to the overarching purpose and the principle discussed in Aon.[28] Efficiency, meaning minimum delay and expense, are an essential part of the just resolution of the real issues. It cannot be said that a just resolution requires that a party be permitted to raise any arguable case at any point upon payment of costs. Delay has deleterious effects not only on the party to the proceedings but also upon other litigants.[29] Where an exercise of discretion is sought to be exercised in favour of on party and to the disadvantage of another, an explanation will be called for.[30]

109 Furthermore, courts exercise particular caution in setting aside consent orders. There is authority to the effect that there is a public interest in solicitors and parties being held to their agreements in the course of litigation, particularly where parties are represented by experienced solicitors.[31] Most cases concerning the setting aside of consent orders relate to settlements. But consent orders on procedural matters may be equally important. The system of workable case management breaks down if practitioners acting on behalf of their clients can agree to something and then vary it later without giving a transparent and persuasive explanation. Unless clients are held to agreements made on their behalf by solicitors, the conduct of litigation will become impossible to manage. Edwards and Sims have given no explanation as to why they should not be held to their agreement that each competing plaintiff would only have one opportunity to re‑bid. Relatedly, the system of orderly case management and the conduct of litigation breaks down if one proceeds on the basis that the conduct of solicitors is not to be attributed to clients on whose behalf they act.

110 The proper lens through which to look at this application is that it is the application of the plaintiffs Edwards and Sims, themselves. Edwards and Sims say that they should not be tarnished by delay that occurred when represented by Bannister Law. Their submission essentially reduces to the contention that because they have new solicitors they are entitled to a clean slate and more particularly, to re‑bid on their carriage application. It is said that the change of solicitors involving Banton Group 'stepping into the breach' suffices for an explanation of the amendment and that any prejudice can be dealt with by the appropriate costs orders at some time in the future. That submission overlooks the critical fact that Edwards and Sims have been the plaintiffs for the entire time. This is not a case in which the plaintiffs have said Bannister Law acted without instructions. The plaintiffs have not given evidence and have not sought to distance themselves from the things that their former solicitor did. Those things on their face were done on their behalf. This application is one brought by the plaintiffs and once it is understood in that way it becomes clear that there has been no relevant change in circumstances. The fact that the plaintiffs have engaged with an ever- increasing cast of third parties in an attempt to rebid does not change the fact that the Court must focus on whether the plaintiffs themselves ought have the leave that they seek. They cannot wash their hands of the conduct of their previous solicitor nor plead in mitigation that they have new solicitors and new funding. The position of lead plaintiff is a serious position of responsibility and a party wishes to have carriage has a responsibility to adhere to procedural orders.

111 A plaintiff party who suggest they should be permitted to rebid because they have new solicitors and funding is an entirely circular argument.

112 Edwards and Sims have the onus of giving an explanation, and the one they have put forward is manifestly inadequate.

113 The substance of the application is that the change of solicitors justifies the amendment. That being so, they were required to say why they needed to change solicitors. All that has been given is hearsay evidence from Ms Banton that Mr Bannister told her on 9 November 2023 that he was not able to continue to act. However, there is considerably more to the circumstances that is addressed by that explanation.

114 Edwards and Sims have not called evidence that, for example, Bannister Law did not have the resources or the ability to conduct the proceedings. It was not shown that Mr Bannister was unavailable to give evidence on the application. The plaintiffs themselves have not given evidence about what they were told or what instructions they gave. That has occurred in circumstances in which an available inference from the materials in evidence is that the real reason (or at least a reason) for the change of solicitors was to improve their prospects of gaining carriage, to use Mr Bannister's language appearing in the correspondence from April 2023.

115 Senior Counsel for Johnston and Moroney emphasised that the matters raised in this context were circumstances that required an explanation on this application. Johnston and Moroney were not submitting that findings ought be made about practitioner conduct, but that the circumstances raised by the evidence called for an explanation in order to justify the amendment application, which had not been given.

116 The evidence supported an inference that the proposed change of position in October 2023 and then in November 2023 was a deliberate tactical decision intended to gain an advantage on the substantive carriage application by 're‑bidding'. It also supported an inference that the proceedings were treated as a vehicle for advancing a commercial deal between successive lawyers and funders.

117 From the documents it is plain that a merger was contemplated by at least 5 July 2023, when Mr Bannister told LLS that his firm was merging with a 'UK/USA firm'. It was therefore evident to Mr Bannister that in the Edwards and Sims proceedings new solicitors would seek to be substituted for Bannister Law, once the proposed merger was completed. Significantly, Edwards and Sims, who did not give evidence, did not say that they did not know about this. They have not said that he was doing anything other than acting on their behalf. A merger was in contemplation at the time Edwards and Sims filed their original and revised Statements of Position in July 2023.

118 In contemplation of the merger, the funding arrangements were terminated. LLS gave notice of termination having been informed that Bannister Law and Pogust Goodhead intended to seek Group Costs Orders and fund the proceedings on a no win no fee basis. The implication is that Bannister Law and Pogust Goodhead preferred a different funding arrangement than the one that had been put in place by Bannister Law (and made the subject of the three Statements of Position filed in these proceedings). Edwards and Sims, by their decision to seek Group Costs Orders, brought about the destruction of their own funding arrangements for which they sought to substitute Group Costs Orders and funding provided through Pogust Goodhead on as then yet to be determined basis. It can be inferred that that decision was tactical and forensic, intended to gain an advantage in the carriage dispute with Johnston and Moroney.

119 Returning to the essential point, it must be recalled that the plaintiffs cannot be regarded as ignorant of these steps absent some proper explanation in evidence, which could have been tested as to what they did and did not know. Bannister Law's conduct is properly to be regarded as their conduct. That is so, even if the plaintiff were in effect treated as a commodity in commercial dealings between lawyers. The plaintiffs either directed Mr Bannister to take steps including terminating the existing funding arrangements and to seek to implement a different funding regime, or they were asleep on the watch while he did it, but nevertheless did it with their authority.

120 In those circumstances, Edwards and Sims cannot properly distance themselves from what has happened on their watch with their authority and plead the existence of new solicitors as the reason for the amendment, at least without giving a fulsome explanation for what has occurred or having Mr Bannister do that. It has not been said that Mr Bannister was unavailable. Although Ms Banton's evidence must be accepted because she was not cross‑examined, Ms Banton cannot explain what occurred because she was not involved in the events during the period between April and November 2023.

121 Edwards and Sims submitted in effect that their most recent proposal is in the interests of group members because it is cheaper than the Maurice Blackburn‑proposed Group Costs Order, and group members' interests require that it be considered. The premise of that submission is that it is necessarily in the interests of justice that any price change ought be allowed because it is in group members' interests. That presumption is demonstrably wrong. Price is just one factor in a multifactorial analysis.[32] In fact, the available inference is that the lawyers sought to introduce a different price setting in order to gain a forensic and tactical advantage.

122 The conduct of the multiplicity issue has been characterised by a series of overlapping delays, all attributable to attempts by Edwards and Sims to amend their position. If Mr Bannister had said in July 2023 that he had in contemplation a merger with another firm and a different funding basis that might have been able to be accommodated differently, then at least Maurice Blackburn would have been on notice of a prospective change. That did not occur. Instead, Bannister Law waited weeks, until the day before the case management hearing in September 2023, before disclosing that information. Accepting that the then proposed merger was incomplete and commercially sensitive, disclosures could have been made on a confidential basis. There was no attempt to do that.

123 Had Edwards and Sims not sought to amend their carriage proposal in such a fundamental way in October 2023, the carriage dispute would likely have been heard on 24 November. The October Amendment Application made that no longer possible. Further delay will inevitably arise if leave is granted, requiring a reconsideration by Johnston and Moroney of the basis for the carriage contest.

124 Substantial costs have been thrown away and no one has actually offered to meet them. There is no reason to think that any order against Edwards and Sims would be efficacious where it is has not been shown that anyone of substance stands behind them. No attempt was made to show that the costs would be paid by any particular entity or person. There was no evidence as to whether the plaintiffs Edwards and Sims are indemnified by any entity subsequent to the termination of the LLS funding and proposed Pogust Goodhead merger. The position was simply not addressed by the material supporting the amendment application. Edwards and Sims' submissions acknowledge that there would be some complexity attending the question of costs and the involvement of various entities but they did not otherwise deal with the issue at all, save to say that prejudice could be relieved by an appropriate order for costs at some later time. That submission was hollow. There is material prejudice caused to the Johnston and Moroney plaintiffs by wasted costs. Unless the court can be satisfied that those costs will be paid, leave should be refused in any event.

125 In Aon, French CJ said,[33] in the context of a pleading amendment, that factor relevant to the exercise of discretion that relates to the interests of the parties but transcends them, is the waste of public resources; the inefficiency occasioned by the need to revisit interlocutory processes either because of non‑compliance with court timetables or because of a late and deliberate tactical change by one party in the direction of its conduct of the litigation. That is what has happened here. The conduct of the carriage dispute by Edwards and Sims is bringing the orderly administration of justice into disrepute. The need for an explanation of the occasion for the amendment is heightened in this context. It is accepted that Aon concerned late changes to a pleading. The orders in this case do not concern pleadings but they were nevertheless concerned with establishing the parameters for the contest that the Court was to determine, and a procedural framework within which the parties' competing positions were to be stated. The principles in Aon are applicable to this application.

126 The defendants submitted that there is a real issue about the costs that have been thrown away, and the costs of the application. There is no evidence of an indemnity that is presently in place in respect of adverse costs orders for these costs (past costs or orders that may be made) and there is a real issue as to whether or not the plaintiffs have the wherewithal to meet those costs. Nor is there any indication from the plaintiffs that they are prepared to pay any costs as a condition of leave. The defendants wish to have the opportunity to make submissions about whether third parties, who would need to be given notice, should be liable for those costs.

127 Edwards and Sims sought leave to amend their Third Statement of Position[34] and their summonses filed on that date. The substantive effect of the amendments would be as follows:

(a) The new Statement of Position would record relevant information for Banton Group and set out its experience and resources (in substitution for that of Bannister Law);

(b) The new Statement of Position would provide for a different basis for funding the proceeding in substitution for that provided by the Third Statement of Position. The Third Statement had provided that Bannister Law would act on a conditional or 'no win no fee basis', with LLS funding 80 per cent of Bannister Law's costs, subject to an agreed and disclosed cap. Bannister Law would be entitled to a 25 per cent uplift on accrued but outstanding professional fees. Banton Group proposes to fund the proceeding by the plaintiffs now seeking a Group Costs Order with the involvement of a litigation funder, as set out above.

(c) To delete parts of the earlier summons that have become otiose.

128 As noted, the present proposed new position presents the same funding terms as those proposed in the abandoned Fourth Statement of Position which envisaged PGA acting for the plaintiffs.

129 This application is brought under rule 36.01 of the Rules. That rule relevantly provides that the Court may at any stage order that any party have leave to amend any document in the proceeding, for the purpose of determining the real question in controversy between the parties to any proceeding. 'Question' has a broad meaning within the Rules.[35] Determination of the 'real question in controversy' is ordinarily understood and considered by reference to whether a question not raised by a pleading would determine the parties' substantive rights, where the issue concerns a pleading. This application is not concerned with amending a pleading. I need not consider the construction the rule; no party raised an issue of power to amend. The contest concerned only the proper exercise of discretion. The power to permit an amendment is broad and unfettered and is to be exercised according to where the justice of the case lies.[36] The broad and general power conferred by s 33ZF of the Supreme Court Act to make any order the Court thinks appropriate or necessary to ensure that justice is done in the proceeding is relevant, as are the Court's case management powers under s 47 of the Civil Procedure Act 2010 (Vic). Under that section the Court may give any direction or make any order that it considers appropriate, including any directions given or orders made in the interests of the administration of justice or the public interest. Such directions or orders may include those that impose any reasonable limits, restrictions or conditions in respect of the management or conduct of any aspect of a civil proceeding or the conduct of any party.

130 Exercise of a discretion to permit a party to amend a document in a proceeding is to be informed by the principles discussed in Aon.[37] Although Aon concerned a late amendment to a pleading made under the rules applicable in that case, it was not contested that those principles are relevant to the disposition of this application, concerning as it does the amendment of a position taken by a party expressed in a document filed pursuant to orders and intended to regulate the proper and efficient conduct of litigation. The principles discussed there include the fact that the conduct of litigation is not merely a matter for the parties but is also for the court, and encompasses the need to avoid disruptions to the court's lists and prejudice to other litigants (the administration of justice consideration).[38] A just resolution of the issues in dispute does not require that a party be permitted to raise any arguable case at any point in the proceedings subject to payment of costs.[39] Case management objectives (I interpolate, such as those expressed in the Civil Procedure Act) do not require that every application for amendment be refused because it will involve some waste of costs and delay, but it is the extent of cost and delay and the resulting prejudice that are to be weighed against the grant of permission to amend.[40] Parties will be given a sufficient opportunity to identify the issues they seek to agitate, but limits will be placed on their ability to make changes to their case.[41] Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for.[42]

131 The 29 June Orders were framed with the objectives discussed in Lidgett and Hino, as set out earlier. The orders were made by consent, but were modelled precisely on the orders made by this Court in Lidgett and Hino. Orders in the same terms were also made in DA Lynch v Star Entertainment Group.[43] As Osborne J said in Hino, a regime of this kind is grounded in case management principles that reflect the overarching purpose of facilitating the just, effective, timely and cost effective resolution of the real issues in dispute. I respectfully agree with the observations of Osborne J that because of the impediment to the prosecution of the substantive proceeding that multiplicity disputes present and the increased incidence of such disputes, it is important that courts be astute in their management as to ensure that carriage disputes are determined in a matter that seeks to give effect to overarching purpose.[44] Orders of the kind made in these proceeding achieve that purpose by limiting the number of 'bids' a party can make in putting its case for carriage. They recognise the competitive dynamic between plaintiff parties by allowing for a single 're‑bid' after the initial exchange of positions, while preventing a cycle of revision upon revision of competing positions and the corresponding deluge of material and re‑worked evidence with which courts dealing with multiplicity disputes are burdened. The orders accordingly reflect dual objectives - orderly and efficient case management, and fairness between competing parties. As to the fairness element, each party may consider and prepare its position both initially and once again having seen the other's position, without being 'gazumped' by a last minute change of position.

132 Edwards and Sims submitted that the public policy argument advanced by Johnston and Moroney concerning the importance of the procedural regime established by the 29 June Orders is too harsh and lacking in nuance. If the 29 June Orders were read as intending to foreclose any application for a further revision of position come what may and regardless of the prevailing circumstances, I would agree. However, that is not the necessary effect of the 29 June Orders. By implication they permit one revision of position and one only, with the consequence that any further attempt to revise may only be by a grant of leave. I agree with Osborne J in Hino that a party seeking to persuade a court to permit a change of position despite orders to that effect should bear a heavy burden. But in any given case the court's discretion is to be exercised according to the usual principles, and taking into account the fulfilment of the overarching purpose. All other things being equal, a regime limiting changes of position serves the overarching purpose.

133 As to the resolution of the multiplicity problem, the Court's task is to ensure that justice is done in the proceedings, being astute to protect the interests of group members.[45] It is necessary for the court to determine which arrangement, including which proceeding should go ahead if one is to be stayed, would be in the best interests of group members.[46] The judicial task in this context has been described as applying a multifactorial analysis by reference to all relevant considerations.[47] Previous cases have identified a number of factors which may be relevant in resolving a multiplicity problem by comparing sets of competing proceeding. Funding terms are often the focus of contest between plaintiffs but as the High Court said in Wigmans, funding arrangements are neither a mandatory consideration, nor irrelevant.[48] The conduct of the representative plaintiff, including any delay caused by the manner in which the proceeding have been conducted, may also be a very relevant consideration. A fact‑sensitive evaluation is required in each case.

134 Johnston and Moroney referred to a number of cases discussing the public importance of holding parties to their agreed positions negotiated in litigation. As the New South Wales Court of Appeal said in Perisher, the public interest reflects the fact that agreements are made between solicitors about matters of practice and procedure all the time and without such agreements the conduct of litigation would in practical terms become impossible to manage.[49] The cases cited concerned different facts to those in issue here - namely an attempt to withdraw consent orders entered after a settlement agreed by counsel with the client's authority (Harvey v Phillips[50]); an attempt to strike out a defence despite enforceable agreement to accept a late filing (Perisher); an application to withdraw an admission despite an express agreement not to do so (Burkett)[51] and opposition by a self‑represented litigant to the making of orders embodying a settlement (Majak)[52]. I accept that as a broad proposition the law recognises a public interest in holdings parties to their agreements struck in the course of litigation. Although the cases to which Johnston and Moroney referred do not have direct application here, the desirability of holding parties to their agreed positions is one consideration that is relevant to this application. Ultimately the question is whether in all of the circumstances Edwards and Sims have established that the proper exercise of discretion is to grant leave to amend.

135 As to the exercise of discretion, Edwards and Sims accepted that wasted costs and delay caused by their past conduct of the multiplicity issue and their failed attempts to amend were relevant considerations, as was their disclosure about what had occurred. They maintained, at the same time, that they should not be 'tarnished' by the conduct of their former solicitor and said that the change of circumstance was sufficiently explained by the fact that they now had new solicitors, and that the occasion for appointing new solicitors was itself adequately explained in the evidence.

136 Without repeating what is set out in Part B, the following findings and conclusions may be drawn from the evidence about Edward and Sims' changes of position and changes of solicitors and funders:

(a) Edwards and Sims (to whom I shall refer in this section as the plaintiffs) consented to the June 2023 Orders. In providing their consent their solicitors were plainly acting within the usual scope of their authority. The solicitors' knowledge is to be attributed to the plaintiffs. I infer that they understood that the orders which they asked the Court to make, by agreement with Johnston and Moroney, were intended to provide a regime by which they would state their position on the issue of carriage with the opportunity of one revision.

(b) The first three Statements of Position filed on behalf of the plaintiffs proposed that Bannister Law would act in the proceedings to be awarded carriage, on the funding basis specified.

(c) The plaintiffs' solicitors, Bannister Law, had in contemplation a merger with Pogust Goodhead, from at least 5 July 2023. It is not known whether the plaintiffs knew of that fact.

(d) By 18 September 2023 Bannister Law had informed LLS, who was funding the proceedings and had agreed to do so going forward if carriage were awarded, that that funding was no longer needed because a Group Costs Order would be sought and the proceedings would be funded on a contingency basis. LLS accordingly gave notice of termination of its funding agreements with the plaintiffs. The plaintiffs gave instructions to Bannister Law that they would retain PGA, when it became operational. I infer that the plaintiffs gave instructions to Bannister Law to seek a Group Costs Order and to inform LLS of that fact. I draw that inference from several facts - the fact that the plaintiffs instructed Bannister Law that they would retain PGA; the fact that PGA's preferred funding model was a Group Costs Order; the fact an application under s 33ZDA for a GCO can only be made by a plaintiff; the filing of the proposed Fourth Amended Position Statement and November summonses seeking a GCO, and the plaintiffs' failure to give any evidence to the contrary. On 18 September 2023 LLS asked for the plaintiffs' consent to an amendment to the terms of the funding agreement to remove certain obligations of LLS in respect of adverse costs orders and in respect of certain accrued costs. I infer that the plaintiffs gave that consent, given the evidence that Bannister Law and Pogust Goodhead sought to obtain such consent and the fact that there was no evidence to the contrary.

(e) The steps taken to end the funding arrangements and commence making application for a different funding arrangement were carried out by Mr Bannister. The plaintiffs did not give evidence that Mr Bannister was acting without or beyond instructions in doing so. Accordingly, I accept the submission of Johnston and Moroney that the plaintiffs brought about an end to their own funding arrangements. The situation was not, as the plaintiffs' submissions put it, that 'previous proposals have fallen through, primarily due to the termination of Bannister's initial funding then the recent failure of the proposed merger between Bannister Law and Pogust Goodhead'. As to the first part of that statement, the funding did not fall through; it was terminated. The second part of the statement was correct but it needs to be contextualised. The proposed funding with the merger firm and Group Costs Order was always subject to a grant of leave to amend the existing position on which the plaintiffs were proceeding.

(f) The plaintiffs did not give evidence about the reason they gave instructions to terminate the funding agreement and instruct Bannister Law to seek to amend their Statement of Position to seek a GCO with the proposed firm, PGA, acting for them. I infer that the reason was that the solicitors including Bannister Law, preferred that funding model. There was no evidence as to why that was so, or that it would not be viable or acceptable for PGA to act on the existing basis.

(g) Johnston and Moroney submitted that the changes effected were tactical and strategic, intended to gain an advantage in the carriage contest. It was said that that inference could be made in part because of the absence of any evidence to the contrary. It is possible that the solicitors Bannister Law and (at the time) Pogust Goodhead were motivated by tactical concerns. It is also possible that they considered a GCO funding model more attractive to them for their own reasons. I accept that in his April 2023 email to Ms Banton, Mr Bannister expressed the view that a combined firm would 'stand a better chance' in a carriage dispute. On balance there is insufficient evidence on which to draw the conclusion for which Johnston and Moroney contend. What remains is the preference of the then solicitors for the change from a 'no win no fee' with litigation funding model, to a GCO. There is insufficient evidence on which to conclude that the proposed merger itself was brought about to gain a tactical advantage in this proceeding.

(h) The only evidence about why Bannister Law withdrew from the proceeding was given by Ms Banton. It was that Mr Bannister was 'unable to continue to act'. No explanation was given, save that he wished to focus on generating work rather than on legal practice. He had previously been prepared to act and represented that he was able to do so. I can infer that Mr Bannister no longer wished to act.

(i) To state the obvious, the plaintiffs did not bring about the proposed merger between Bannister Law and Pogust Goodhead, or its demise. They did not cause Mr Bannister to cease to act in the proceedings. The fact that they have retained Banton Group to act in the proceedings because Bannister Law withdrew was explained.

(j) Ms Banton is independent of Bannister Law. I accept her evidence about the circumstances in which she became involved in the proceeding (as set out earlier). The plaintiffs wish the proceedings to continue and have instructed Banton Group to make the present application.

(k) Ms Banton's evidence that she concluded that notwithstanding the complex procedural history of the proceedings and the carriage contest to date, she considered it in the interests of group member to propose the GCO pricing structure in the current summons was not challenged and must be accepted. She also said in her evidence that she was not prepared to undertake the proceeding on a 'no win no fee' basis because the available reward did not justify the assumption of risk and cost to the firm. Commercial considerations then (unsurprisingly) also informed the basis on which Banton Group decided to act in the proceeding. As noted earlier, Banton Group subsequently indicated that in the event that leave to amend the funding basis of the current proposal were refused, Banton Group would be prepared to proceed on a basis equivalent to that set out in the existing statement of position, rather than withdraw from the proceedings. That position was communicated on instructions.

137 As to wasted costs, delay and resulting prejudice, Edwards and Sims do not take issue with the fact that their changes of position have caused delay. That is, they do not say that what occurred in the past (before the issue of the present application) is irrelevant. Including for that reason, it is appropriate to take into account the history of the plaintiffs' attempts to amend their position in exercising discretion on this application, notwithstanding that some of the relevant steps (those occurring after the transfer of the proceedings to this Court) occurred before the issue of the present application.

138 The changes of position have caused Johnston and Moroney to incur not insubstantial costs. The defendants have also incurred costs. A number of the relevant steps causing wasted costs (terminating the original funding and proposing a new position, instructing Banton Group to make the present application) are directly attributable to Edwards and Sims and were taken on their behalf.

139 Edwards and Sims have not sought to address the issue of costs in any substantive way. I accept the submissions of Johnston and Moroney and the defendants on this issue. There is no evidence that any party with means will take responsibility for those costs. No evidence was advanced on this application on that issue, notwithstanding that there was clear notice of it (including by the detailed evidence of Ms Gilsenan) and notwithstanding that the plaintiffs accepted that their conduct of the multiplicity issue had likely led to wasted costs. Edwards and Sims accepted that 'complex' questions of costs would arise in relation to the involvement of third parties (as their counsel put it). It may be readily concluded that that fact by itself will cause the affected parties (Johnston and Moroney and the defendants) to incur further costs in seeking to untangle that knot. The third parties whose involvement in the proceedings might be relevant to the issue of the costs of the conduct of the multiplicity issue[53] were each instructed by the plaintiffs.

140 As to delay, I accept that the October Amendment Application meant that the carriage contest could not be heard in November 2023. Johnston and Moroney urged upon the Court the course of deciding the application for leave to amend, separately from the carriage contest itself. Taking a different course (which I accept was open) would have entailed Johnston and Moroney deciding whether to seek to amend their position by bidding against themselves, without knowing whether leave to amend would be granted to their opponents. Edwards and Sims were content to proceed in that way. The Court's commitments to other litigants listed for trial meant that a carriage contest could not have been heard before now in any case. I accept the submission that the conduct of the multiplicity issue has involved overlapping steps causing delay. Some of those steps are directly attributable to the plaintiffs Edwards and Sims.

141 I also accept that if leave to amend is allowed, Johnston and Moroney will, acting reasonably, need to incur further costs to consider their position in response.

142 As to group members' interests, I accept that the proposed new position for Edwards and Sims will deliver a return of somewhere between 5% and 9.1% more to group members, than that proposed by Maurice Blackburn, depending upon the resolution sum achieved. There was no evidence on this application about likely or possible returns. As set out earlier, in a carriage contest, group members' interests are to be given primacy. However, as Edwards and Sims submitted, it is far from self‑evident that a 'cheaper' proposal would be given preference in a multi‑factorial analysis. I make no judgment at this stage about how those issues would be decided. All would depend on the issues as established on the evidence at that time. However, it is reasonable to say that the conduct of the litigation would be one relevant factor requiring consideration. Edwards and Sims did not demur from that proposition.

143 Were the issues arising on this application considered in the abstract, the question might be framed as whether, where a party involved in a carriage contest changes solicitors, it ought be granted leave to amend its position notwithstanding procedural orders of the kind made in this case. There may well be circumstances in which the answer to that question would be, 'yes'.

144 However, the application does not arise in the abstract and is not to be considered in that way. This is in my view an unusual case, and one in which the relevant considerations do not all point in the same direction.

145 It is accepted that Edwards and Sims are seeking an indulgence, and that the considerations informing the exercise of discretion to grant or refuse that indulgence are those discussed. They relied primarily on the change of circumstances (new solicitors) and the interests of group members, adding that the prejudice caused by their conduct could be ameliorated by an award of costs at a later date.

146 The proposition that the application should be granted so as to regularise things because other arrangements have 'fallen through' is only part of the story. It does not account for the fact that some of the steps that have caused prejudice have been of the plaintiffs' own making. That prejudice is real, although much of it has already been suffered, as it were. The prejudice caused by past conduct might have been ameliorated by a suitable arrangement being proposed in respect of costs. None was proposed despite clear knowledge of the importance of that issue. Those factors, taken together, count against a grant of leave to amend.

147 On the other hand, it must be recognised that the events since November 2023 (withdrawal of Bannister Law in particular) have not been of the plaintiffs' making. The fact that the plaintiffs have appointed new solicitors is a consequence of that fact.

148 It appears that it is the intention of Johnston and Moroney to shut down the carriage contest all together by refusing all amendments to the Statement of Position, so as in effect not to allow Edwards and Sims to continue with the proceedings while instructing Banton Group. Taking that course of action would in effect bring the Edwards and Sims proceedings to an end by refusing to allow the plaintiffs to seek to resist the stay of proceedings sought by Johnston and Moroney. That result would be disproportionate to the prejudice caused by the conduct attributable to the plaintiffs. It would fail to take account of the fact that Bannister Law withdrew from the proceedings, leaving Edwards and Sims without solicitors. That fact was not attributable to the plaintiffs.

149 It follows that despite the past conduct of Edwards and Sims leading to the incurrence of cost and delay, I consider that they should be permitted to amend their summonses and Statement of Position so as to reflect the fact that they are now represented by Banton Group (and also to remove those parts of the summonses that are otiose because of the effluxion of events).

150 The remaining question is whether they should also be permitted to amend their commercial terms (and seek a Group Costs Order).

151 If allowed, the proposed new funding regime may deliver benefits to group members over and above those that would be obtained under the Maurice Blackburn proposal, if (and only if) the Edwards and Sims proceedings were to be granted carriage. But as discussed, in a carriage contest that might or might not be the result. In determining who wins carriage, many other considerations will be relevant. As a broad proposition I do not accept that the opportunity for the Court to consider that proposal with the prospect that it might prevail in a carriage contest in order to potentially provide group members with such a benefit ought determine the proper disposition of an application for leave to amend. That a component of a new proposal is better in some ways than an existing one does not self‑evidently require that it must be considered and a grant of leave be made. It is one factor among others. The other considerations include those underpinning the June 2023 Orders, as discussed earlier. Given the conduct of the litigation to date, in the circumstances discussed, I do not consider that this factor should weigh the balance in favour of granting leave to amend the funding terms.

152 I consider that in all the circumstances leave to amend the funding terms should be refused. What that means is that Edwards and Sims will be at liberty to advance a carriage proposal that is in substance equivalent to their existing position, with due allowance made for the change of solicitors and funders and their applicable hourly rates, funding commissions and budget estimates. In this case, the plaintiffs and Banton Group are prepared to proceed on a basis equivalent to the existing terms, notwithstanding that is not their preference. It is their alternative case in the event that leave is refused to amend in whole. I infer from their preparedness to do so that they have the wherewithal to put in place new retainers and funding agreements. The existing position was understood by Banton Group when deciding to act.

153 This outcome is not what Johnston and Moroney sought by opposing leave to amend. But the Court has broad powers when considering an amendment application and may allow an application in part. The effect of allowing leave only in part is to permit the Edwards and Sims proceedings to continue with legal representation, but to hold those plaintiffs to the commercial position from which they sought to move. It limits to a significant extent the opportunity for them to benefit from their changes of position (by gaining a competitive advantage in the carriage contest). That that occurs is appropriate where those parties have failed to address in any meaningful way the consequences to the other parties of their conduct of the carriage dispute.

154 Whilst this course will not remedy the past wastage of costs it will, to an extent, limit future costs arising from the change of position in that the most affected parties (Johnston and Moroney) will not have to entertain the prospect of 're‑bidding' in response to changed commercial terms.

155 Allowing leave in part is not a perfect solution but it avoids the overreach of the alternatives. In my view, that is where the justice lies.

156 Johnston and Moroney and the defendants have each indicated that they wish to consider the prospect of third party costs orders. I will hear the parties on the appropriate costs disposition after suitable time is allowed for submissions.

[1] By summonses filed 17 November 2023.

[3] The amendments sought by the application are considered in more detail below.

[4] The application proceeded on that basis without a formal order. I will regularise that position by an order nunc pro tunc.

[5] See further at paragraphs [149]-[152].

[8] By way of purchase, exchange, lease or hire purchase, having acquired the vehicle from Hyundai, a Hyundai or Genesis dealership or another retailer, otherwise than by sale at auction or the purposes of re‑supply or use in production, manufacture or repair.

[11] By way of purchase, lease or otherwise, having acquired the vehicle from Hyundai authorised dealer or other retailer, otherwise than by sale at auction or the purposes of re‑supply.

[12] Group members are classified into sub‑groups reflecting whether they had retained or disposed of their interest in the affected vehicles as at the filing date and whether their vehicles had a 'fix' installed by Hyundai that purportedly fixed the alleged defect.

[13] The number of affected group members appears to be a function of the number of affected vehicles covered by the proceedings, which is defined by reference to particular recall notices. The Edwards and Sims proceedings cover a greater number of recall notices than the Johnston and Moroney proceedings.

[14] Described in the materials as the Revised Statement of Position.

[15] Edwards v Hyundai Motor Company Australia Pty Ltd; Sims v Kia Australia Pty Ltd [2023] FCA 1137.

[16] Evidently meaning one or more of the entities involved in the law practice branded as Pogust Goodhead and operating in several jurisdictions internationally.

[17] Citing Wigmans v AMP (No. 3) [2019] NSWSC 162; (2019) 366 ALR 594.

[18] These are the applications now in issue.

[19] Affidavits sworn 20 November 2023 and 12 December 2023.

[20] Maglio v Hino Motor Sales Australia Pty Ltd; McCoy v Hino Motors Pty Ltd [2023] VSC 757 (Hino), [63].

[21] As set out below under Johnston and Moroney's submissions.

[22] Lidgett v Downer EDI Ltd [2023] VSC 574 (Litgett), [34].

[23] Maglio v Hino Motor Sales Australia Pty Ltd; McCoy v Hino Motors Pty Ltd [2023] VSC 757 (Hino), [63].

[24] Hino [2023] VSC 757 [63].

[25] Hino [2023] VSC 757 [65].

[26] Hino [2023] VSC 757 [30].

[27] Hino [2023] VSC 757 [28].

[28] Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (Aon).

[29] Aon [2009] HCA 27; (2009) 239 CLR 175, [5], [98], [114].

[30] Aon [2009] HCA 27; (2009) 239 CLR 175, [103].

[31] Wilkinson v Perisher Blue Pty Ltd [2012] NSWCA 250 (Perisher), [96]; cited with approval in Burkett v Bendigo and Adelaide Bank (No.3) [2019] VSC 45 (Burkett); see also Majak v Rose [2021] VSC 599 (Majak).

[32] See, e.g. Wigmans v AMP Ltd [2021] HCA 7; (2021) 270 CLR 623 (Wigmans), 651 [60]; DA Lynch v Star Entertainment Group; Drake v Star Entertainment Group; Huang v Star Entertainment Group; Jowene v Star Entertainment Group [2023] VSC 561 (Star), [18].

[33] Aon [2009] HCA 27; (2009) 239 CLR 175, [24].

[36] Burkett [2019] VSC 45 [14]

[37] Aon [2009] HCA 27; (2009) 239 CLR 175.

[38] Aon [2009] HCA 27; (2009) 239 CLR 175, [93].

[39] Aon [2009] HCA 27; (2009) 239 CLR 175, [98].

[40] Aon [2009] HCA 27; (2009) 239 CLR 175, [102].

[41] Aon [2009] HCA 27; (2009) 239 CLR 175, [112].

[42] Aon [2009] HCA 27; (2009) 239 CLR 175, [103].

[43] DA Lynch v Star Entertainment Group; Drake v Star Entertainment Group; Huang v Star Entertainment Group; Jowene v Star Entertainment Group [2023] VSC 561.

[44] Hino [2023] VSC 757, [30]-[31].

[45] Wigmans [2021] HCA 7; (2021) 270 CLR 623, 667-8 [109], 670 [116]-[117].

[46] Wigmans [2021] HCA 7; (2021) 270 CLR 623, 649 [52].

[47] Wigmans [2021] HCA 7; (2021) 270 CLR 623, 651 [60].

[48] Wigmans [2021] HCA 7; (2021) 270 CLR 623, 668 [111].

[49] Perisher [2012] NSWCA 250, [96].

[50] Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235.

[51] Burkett [2019] VSC 45.

[52] Majak [2021] VSC 599.

[53] I expressly make no finding about the exposure of any third party to an order for costs. That is for another occasion.