Consideration
121 There are three open class representative proceedings before the Court against the same respondent, relating to the same subject matter and relying to a large extent on the same causes of action. As is accepted by all parties, the circumstances give rise to potential overlap between the proceedings such that it is appropriate for the Court, as a matter of case management, to consider options such as those outlined in [109] above to address the situation.
122 There is no issue that the Court has the power to permanently stay one or two of the proceedings. Each party accepted this at the hearing before me. Indeed, the primary position of each party was that two of the three proceedings should be permanently stayed. The Full Court's judgment in GetSwift has confirmed that the Court has the power, in circumstances such as this, to permanently stay one or two of the proceedings: at [121].
123 Of the five options outlined in [109] above, the first three options can be put to one side. Consolidation of proceedings would not be appropriate given that there is no agreement between the parties in the competing class actions as to consolidation, and there are different lawyers and funders in relation to each proceeding. An order under s 33N(1) of the Federal Court of Australia Act has not been sought by any party. The considerations discussed in GetSwift at [59]-[63] do not suggest that an order under s 33N(1) would be apt in the present circumstances. Subject to the issue discussed below regarding the additional period covered by the LACERA proceeding, the 'wait and see' approach does not seem attractive in the circumstances of this case. It would be productive of inefficiency and increased expense to defer determination of the issues raised by the overlap between the proceedings. In my view, the factors referred to in GetSwift at [122], quoted above at [113], tend against the adoption of such an approach, at least in the circumstances of this case.
124 The remaining two options referred to in [109] above are: a permanent stay of one or more of the proceedings; and an order closing the class in one or more of the proceedings but leaving one of the proceedings as an open class proceeding, with a joint trial of them all. There may be other options in addition to these, but these would appear to be the main options to be considered.
125 The primary position of the applicant in each proceeding and the position of BHP Limited is that two of the proceedings should be permanently stayed. The applicant in each proceeding contends, as his or its primary position, that the other two proceedings should be stayed. BHP Limited contends that two of the proceedings should be stayed but does not specify which two.
126 Klemweb advances a number of alternatives by way of fall-back positions. In oral submissions, Klemweb put forward the following alternatives:
(a) the Klemweb proceeding would go forward as an open class proceeding for its relevant period (27 August 2014 to 9 November 2015); and the Impiombato and LACERA proceedings would be stayed in relation to the overlapping period, but otherwise could be permitted to continue; or
(b) the Klemweb proceeding would go forward as an open class proceeding; and the Impiombato and LACERA proceedings would continue as closed class proceedings.
127 In its supplementary submissions filed after GetSwift was handed down, Klemweb put forward a further alternative, namely that as a fall-back position Klemweb would be prepared to advance the proceeding on a closed class basis and would seek the opportunity to put on evidence as to the viability of this option should it be necessary to do so.
128 In light of the positions of the parties, and accepting (at least for present purposes) that only one of the proceedings should go forward on an open class basis, it will be convenient to consider, first, which proceeding should go forward as the open class proceeding and then to consider whether any other proceeding should go forward (eg, on a closed class basis).
129 In considering which proceeding should go forward as the open class proceeding, I do not place weight on the order in which the proceedings were commenced. The Full Court in GetSwift emphasised that the Court "must strongly discourage a rush to the Court in large and complex class proceedings, carrying as it does the consequent risks of insufficient due diligence and the commencement of unmeritorious, or at least weak, cases" (at [279], set out above). Further, as stated above, the primary consideration in determining how to constitute the proceedings is the interests of group members. It would be inconsistent with this to give weight to the order in which the proceedings were commenced. However, it should be noted that in the present case there is no suggestion that the first proceeding (the Impiombato proceeding) was commenced in haste. To the contrary, as the affidavit material described above demonstrates, the proceeding was commenced after a thorough investigation and proper consideration of the potential claims. While this may bear upon other factors (eg, the state of preparation and the experience and capability of the legal team), as stated above, I do not place weight on the order in which the proceedings were commenced.
130 Subject to the issue concerning the relevant period (discussed below), there is substantial overlap between the claims made in the three proceedings. In particular, I note the following matters:
(a) Each proceeding is brought on behalf of persons who or which acquired an interest in ordinary shares in BHP Limited on the ASX, in BHP Plc on the LSE, or in BHP Plc on the JSE.
(b) The claims that each applicant advances for contravention of s 674 of the Corporations Act are premised, in substance, on alleged knowledge by BHP Limited that there was a significant or material risk that the Fundão Dam would fail with a consequential financial risk to BHP in the event that the risk of dam failure materialised. While the proceedings adopt different definitional approaches to labelling these risks, there is little, if any, substantive difference between the alleged material information underpinning the continuous disclosure claims brought in each proceeding.
(c) This is also true of the way in which BHP Limited's awareness of the alleged material information is said to arise. In each proceeding, knowledge of the material information is sought to be imputed to BHP Limited by reason of information that certain representatives of BHP Limited had or ought to have had. Each statement of claim identifies at least the same five individuals as BHP Limited's human agents in this regard.
(d) The claims brought in each proceeding for contravention of the prohibition against misleading or deceptive conduct contained in s 1041H of the Corporations Act and/or s 12DA(1) of the ASIC Act share a common substratum of alleged facts. Each claim proceeds on the basis that BHP Limited made representations regarding the existence and efficacy of its safety and risk management systems and those representations were misleading or deceptive.
(e) It is true that the LACERA proceeding also pleads parallel contraventions of s 18 of the Australian Consumer Law, and that misleading statements were made in contravention of s 1041E(1) of the Corporations Act, s 12DB(1)(a) of the ASIC Act and/or s 29(1)(b) of the Australian Consumer Law. But the factual foundation of these allegations is largely the same as that of the alleged contraventions of s 1041H.
(f) I note also that the LACERA proceeding includes, as additional bases for its misleading or deceptive conduct claims, alleged representations regarding the operational and financial performance of Samarco (including the absence of any "unusual risks" relevant to the future financial performance of Samarco and BHP). However, the safety and risk management aspect of the misleading or deceptive conduct claims is common across all three proceedings.
(g) The form of relief sought on behalf of group members is relevantly identical across all three proceedings.
(h) The causal theory as to how the group members suffered loss is common across all three proceedings: each involves the concept of market-based causation and alleges that, but for the alleged contraventions by BHP Limited, each group member would have acquired their shares in BHP Limited or BHP Plc at a lower price or would not have acquired the shares at all.
131 In light of the substantial overlap as described above, and subject to the issue concerning the relevant period (discussed below), I do not consider the nature and extent of the allegations in the statements of claim to provide a basis to prefer one proceeding over the others.
132 A material difference between the three proceedings concerns the funding arrangements. In summary:
(a) In the Impiombato proceeding, a common fund order has been made incorporating certain "funding terms", which set out the respective rights and obligations of the funder and group members under the common fund. The funding terms provide that the funder is entitled to a commission of "an amount less than 18% of the Gross Recovery" in consideration for funding the proceeding. The commission is inclusive of expenses paid by the funder in the course of funding the litigation, including legal costs and disbursements.
(b) In the Klemweb proceeding, it is proposed that a common fund order be made incorporating the Litigation Services Fee, being a commission payable to Maurice Blackburn of not more than 15% (for amounts recovered up to and including $150 million) and not more than 10% (for amounts recovered in excess of $150 million). The Litigation Services Fee would be inclusive of legal costs and disbursements.
(c) In the LACERA proceeding, it is proposed that a common fund order be made incorporating funding terms that include a commission payable to the funders as set out in Schedule 1 to the funding terms (see [104] above). No commission is payable in respect of a recovery of up to and including $50 million. If there is a recovery of more than $50 million, a commission is payable comprising a Base Commission and (in respect of bands 3, 4 and 5) an additional percentage. The Base Commission is "an amount equal to 15% of the Total Recovery minus $50,000,000", subject to a cap if the Successful Conclusion Date is before the date falling 3 years after the Start Date. The commission payable to the funders is capped at 21.5% of the Total Recovery. The commission is in addition to the reimbursement of legal costs and disbursements paid by the funders.
133 One of the issues that arises is whether the funding arrangement proposed by Klemweb, which involves the payment of a commission to solicitors, is likely to be approved or accepted by the Court as part of the making of a common fund order. The issue arises because the legislation regulating the legal profession in Victoria prohibits a law practice from entering into a costs agreement providing for a contingency fee. Section 183(1) of the Legal Profession Uniform Law, which is set out in Sch 1 to the Legal Profession Uniform Law Application Act 2014 (Vic), provides that a "law practice must not enter into a costs agreement under which the amount payable to the law practice, or any part of that amount, is calculated by reference to the amount of any award or settlement or the value of any property that may be recovered in any proceedings to which the agreement relates". The civil penalty for contravention of this provision is 100 penalty units. A contravention of s 183(1) by a law practice is capable of constituting unsatisfactory professional conduct or professional misconduct on the part of any principal of the law practice or any legal practitioner associate or foreign lawyer associate involved in the contravention: s 183(3). Klemweb submits that as the proposed funding arrangement would be incorporated in a common fund order rather than a costs agreement, there would not be a contravention of s 183(1), relying on observations made by the Victorian Law Reform Commission in its report, Access to Justice - Litigation Funding and Group Proceedings (March 2018) at [3.96]. However, even if there would be no contravention of s 183(1), it is unlikely that the Court would make a common fund order incorporating the payment to a law firm of a commission on a settlement sum or judgment in circumstances where the clear legislative policy evinced by s 183(1) is against the payment of such a commission. Accordingly, I consider it unlikely that the Court would make a common fund order as proposed in respect of the Klemweb proceeding.
134 As an alternative to the Litigation Services Fee, Ms Dellavedova stated in her 16 October 2018 affidavit that Maurice Blackburn was instructed to apply for a common fund order on the basis of the terms set out in the retainer (subject to Court approval). This is a no-win / no-fee model, with a 25% uplift on 25% of the fees. The effect of this arrangement would be that Maurice Blackburn would fund the disbursements incurred in the course of the proceeding. In the event of a recovery, Maurice Blackburn would be reimbursed for these disbursements and be paid its fees (with a 25% uplift on 25% of the fees). There is no reason, in principle, why the Court would not approve a common fund order incorporating such an arrangement. I will therefore proceed on the basis that this is the proposed arrangement with respect to the Klemweb proceeding.
135 The funding arrangements in respect of the Impiombato proceeding are, in my view, attractive from the perspective of group members. The common fund order provides a maximum percentage commission that is inclusive of all costs. It offers group members the certainty of a minimum net percentage recovery from any settlement or judgment sum, insulates them from potential costs overruns, and incentivizes the funder to keep costs low. The Court retains full discretion as to the appropriate fee: see the August 2018 Reasons, [28]-[29].
136 Klemweb and LACERA each rely upon financial models that seek to compare the funding terms proposed in each of the three proceedings. In particular:
(a) LACERA relies upon the expert report of Mr Rossetto;
(b) Klemweb relies upon a "Funding Summary Model" set out at annexure "BWD-18" to the affidavit of Ms Dellavedova sworn on 25 October 2018; and
(c) Klemweb also relies upon a "Funding Summary Model" set out at annexure "BWD-24" to the affidavit of Ms Dellavedova sworn on 29 October 2018.
137 The expert report of Mr Rossetto seeks to compare the total costs of funding and the total return to group members under the common fund orders made or sought in the LACERA proceeding, the Impiombato proceeding and the Klemweb proceeding (on the basis of the Litigation Services Fee proposed by Maurice Blackburn). The report considers a number of hypothetical scenarios based upon the following variables: the amount of any settlement sum; the amount of legal costs incurred in the proceeding; and the time between the commencement of the proceeding and the date of settlement. In each scenario, the report calculates the percentage of the gross settlement sum payable to the funder or law firm and the percentage of the gross sum that would be available for distribution to group members under each of the three funding models.
138 The "Funding Summary Model" set out at annexure "BWD-18" is a one-page document prepared by Maurice Blackburn that seeks to compare the total costs of funding and return to group members under the common fund orders sought or made in the Klemweb proceeding (on the basis of the proposed Litigation Services Fee), the Impiombato proceeding and the LACERA proceeding. This document considers five scenarios based upon different hypothetical settlement amounts. In each scenario, the document calculates the total amount available for distribution to group members (expressed as a total and a percentage of the gross settlement amount) and the percentage of the gross settlement amount payable to the funders or law firm under each funding model. For the purposes of the LACERA proceeding, the document assumes that the proceeding will settle three and a half years after commencement, that the legal costs will be consistent with a litigation budget prepared by Johnson Winter & Slattery, and that the funder will incur certain costs in respect of an ATE insurance premium.
139 The "Funding Summary Model" set out at annexure "BWD-24" is a three-page document prepared by Maurice Blackburn. It is generally similar to, and considers the same five hypothetical settlement scenarios as, the document set out at annexure "BWD-18". However, it includes analysis of the no-win / no-fee model proposed by Maurice Blackburn as an alternative in the Klemweb proceeding. Further, the document includes analysis of three different time periods: a settlement at nine months; a settlement at two years, and a settlement at three and a half years after commencement of proceedings.
140 Although there may appear to be some differences in the figures set out in the report of Mr Rossetto and the models prepared by Maurice Blackburn, the documents are not in fact inconsistent. The differences in the documents are largely a result of the different variables considered and assumptions made by the authors. For example, the Maurice Blackburn analysis of the LACERA funding model assumes that the amount of legal fees and disbursements incurred will be consistent with a litigation budget prepared by Johnson Winter & Slattery and also includes provision for an ATE insurance premium to be paid by the funder. By contrast, the Rossetto report considers four different hypothetical scenarios for LACERA's legal fees and disbursements. These assumptions have a significant impact upon the analysis.
141 I note that there are certain limitations to the type of analysis set out in the financial models relied upon by Klemweb and LACERA. Each of the models assumes that the funding arrangement in respect of the Impiombato proceeding is a commission of 18%, but in fact the amount payable for commission for that proceeding is up to 18%, with the amount to be determined by the Court. Further, the outcomes are dependent on a range of variables, including the total amount of any settlement or judgment, the time between the commencement of proceedings and settlement or judgment, and the amount of the legal fees and disbursements. In order to place significant weight on such analysis, assumptions would need to be made about the likely course and outcome of the proceedings. This is difficult given that the proceedings are at an early stage.
142 I draw the following conclusions from the financial models described above:
(a) The question of which funding arrangement is most advantageous to group members is dependent upon a range of factors that cannot be determined with precision at this stage of the proceedings.
(b) The funding arrangement in the Impiombato proceeding, based upon a maximum percentage commission inclusive of costs and expenses, means that the Court can be reasonably certain about the minimum amount (as a percentage) of any settlement or judgment sum that would be available for distribution to group members, regardless of the amount of legal fees and expenses ultimately incurred.
(c) On a range of realistic scenarios, the LACERA funding arrangement is likely to result in a higher total amount being paid in respect of commission and costs and, consequently, a lower percentage of any settlement or judgment sum being available for distribution to group members.
(d) In many scenarios, the no-win / no-fee arrangement in the Klemweb proceeding is likely to result in a higher percentage of any settlement or judgment sum being available for distribution to group members, as the arrangement does not require a commission to be paid to a funder.
143 In my view, the interests of group members would be best served by the Impiombato funding arrangement. As noted above, the common fund order provides a maximum percentage commission that is inclusive of costs and expenses and offers group members the certainty of a minimum net percentage recovery from any settlement or judgment sum. The Court retains full discretion as to the appropriate fee. The LACERA model, on a range of realistic scenarios, is likely to result in a higher total amount being paid in respect of commission and costs. I do not accept the submission that, because the commission proposed in the LACERA proceeding is subject to Court approval, it is in effect merely a maximum amount in the same way as the 18% in the Impiombato proceeding is a maximum. The funding terms in the LACERA proceeding contain detailed provisions regarding the commission, including different rates for different bands of recovery, as well as time-based caps. This suggests that the commission is not merely a maximum but rather is the proposed return to the funders, while remaining subject to Court approval. The no-win / no-fee model proposed in the Klemweb proceeding, while likely to result in a higher percentage of any settlement or judgment sum being available for distribution, is not the preferred model put forward by Klemweb and Maurice Blackburn and may in some respects be less attractive than an arrangement involving a litigation funder. As the Full Court in GetSwift stated at [277] (quoted above), the Court "should focus less on achieving the lowest possible costs and funding charges in any selection process, and more on selecting the proceeding with a funding and costs models likely to best motivate the applicant's solicitor and funder to work assiduously to achieve the best outcome for the applicant and group members and to take responsible risks in that regard". It is important in the interests of group members that the proceeding be properly resourced so that there is a 'level playing field' between the applicant and group members on the one hand and BHP Limited on the other. I consider the Impiombato funding arrangement to better achieve this than the Klemweb no-win / no-fee arrangement.
144 I turn now to refer to some other considerations. One of the matters to which regard should be had is the legal representation in each proceeding. The affidavit material described above demonstrates that in each of the three proceedings the firm of solicitors acting for the applicant has considerable class action experience and the capability to manage the proceeding to a high standard. I do not consider this factor to provide a basis to differentiate between the three proceedings.
145 Another matter to which regard may be had is the number of group members who or which have entered into funding agreements: Getswift at [178]. As set out in the table at [9] above, there are 29,610 signed up group members in respect of the Impiombato proceeding (including 219 institutional investors) and 197 signed up group members in respect of the Klemweb proceeding (including 68 institutional investors). Details of the numbers of shares held by the signed up group members have been set out above. The solicitors and funders in the LACERA proceeding have not undertaken a 'book building' process, consistently with judicial statements regarding the inutility of book building where a common fund order is to be sought. In circumstances where a common fund order has been made or is sought to be made in all three of the proceedings, I do not place much weight on the number of group members who or which have entered into funding agreements. To the extent that regard is had to this factor, it favours the Impiombato proceeding. The Impiombato signed up group members include a large number of institutional investors (who may be taken to be sophisticated investors). Although many signed up at a time when there was only one proceeding proposed or on foot (and thus no choice between alternative proceedings), it is relevant to note that they received clear information that Mr Impiombato intended to seek a common fund order and the exact terms of the order.
146 The state of preparation of each proceeding is a potential consideration. The affidavit material described above demonstrates that the Impiombato proceeding is the most advanced in terms of preparation. A considerable amount of work has been undertaken by the solicitors, including retaining a significant number of experts. While some work has been done in the Klemweb proceeding, it does not appear to be as far advanced. LACERA has not filed material concerning its state of preparation, apparently on the basis that it does not wish to disclose such matters to the respondent. (I note that in respect of other issues, material has been filed on a confidential basis.) Given the early stage of the proceeding, it is unlikely to matter very much whether one proceeding is more or less advanced in its preparation. Nevertheless, the work that has been undertaken by Phi Finney McDonald, as described in detail in the affidavit material, does give me confidence in the quality of the legal representation of the applicant and group members.
147 Submissions were made regarding the arrangements for and the capability to provide security for costs. I do not consider this to provide a basis to differentiate between the proceedings. The evidence suggests that in each proceeding there would be an ability to provide security for costs.
148 The applicants in each proceeding provided (confidential) estimates of the legal costs to take the matter to trial. Although there are differences between the estimates, I do not consider this to provide a basis to differentiate between the proceedings. The estimates are not binding and the ultimate figure may well differ significantly from the estimate.
149 In relation to the Impiombato proceeding, a steering committee is to be established to provide a mechanism for consultation with group members. This would appear to be a sensible proposal. Likewise, a litigation committee is proposed in relation to the Klemweb proceeding. Conversely, LACERA emphasises its experience as an investor and suggests that a steering committee is not necessary, as it would be providing instructions to its lawyers.
150 In light of the matters discussed above, and putting to one side the difference in the relevant periods in each proceeding, in my view the Impiombato proceeding is the most appropriate proceeding to go forward as the open class proceeding. In particular, I consider the funding arrangement for that proceeding to best serve the interests of group members. The other factors that have been discussed are either neutral or favour the Impiombato proceeding. The Klemweb proceeding's relevant period is wholly subsumed within the Impiombato relevant period. Therefore, this does not provide a reason not to choose the Impiombato proceeding as the open class proceeding. However, the relevant period in the LACERA period is longer than the relevant period in the Impiombato proceeding. The LACERA proceeding covers the period 8 August 2012 to 9 November 2015, compared with the Impiombato proceeding's period of 21 October 2013 to 9 November 2015. This raises a question whether the LACERA proceeding should, essentially for this reason, be chosen as the open class proceeding.
151 While the statement of claim in the LACERA proceeding (which was prepared by counsel and has been certified by a solicitor) indicates a basis upon which to contend for the longer period, the affidavit material filed by Johnson Winter & Slattery does not describe any investigations or preparation that led to the adoption of the longer period. In the circumstances, it is not possible for the Court to assess at this stage whether there is substantive merit in the additional period covered by the LACERA proceeding. While the longer claim period is a factor weighing in favour of the LACERA proceeding, on balance I am not inclined to depart from my view that the Impiombato proceeding is the most appropriate proceeding to go forward as the open class proceeding. Rather, I consider it preferable to give the applicant in the Impiombato proceeding a period of time in which to investigate and consider potential claims in relation to the additional period covered by the LACERA proceeding (ie, the period from 8 August 2012 to 20 October 2013) and to temporarily stay the LACERA proceeding for a period of time while this occurs. If, after a period of investigation and consideration, the applicant in the Impiombato proceeding seeks leave to amend his statement of claim to include claims relating to the additional period, and such leave is granted, it is likely that I would then permanently stay the LACERA proceeding. If, after a period of investigation and consideration, the applicant in the Impiombato proceeding does not wish to amend, this may have a bearing on whether the LACERA proceeding should be permanently stayed or some other course adopted. Accordingly, I do not consider the fact that the LACERA proceeding has a longer relevant period to provide a sufficient reason in the circumstances of this case to depart from my view that the Impiombato proceeding is the most appropriate open class proceeding.
152 Having regard to the matters discussed above, in my view the Impiombato proceeding is the most appropriate proceeding to go forward as the open class proceeding.
153 I turn now to consider the orders that should be made in relation to the other two proceedings. It is unnecessary to consider the alternatives put forward by Klemweb as set out at [126] above as these are predicated upon the Klemweb proceeding going forward as the open class proceeding.
154 As noted above, in its supplementary submissions following the GetSwift judgment, Klemweb stated that, as a fall-back position, it would be prepared to advance the proceeding on a closed class basis and would seek the opportunity to put on evidence as to the viability of this option should it be necessary to do so. I am not inclined to permit further evidence to be adduced. The Multiplicity Question was set down for hearing on 29 October 2018 and timetabling orders were made for the filing and service of evidence in relation to that question. If Klemweb had wanted to file evidence on this point, it should have been filed in accordance with that timetable. Nevertheless, I will proceed on the basis that, if this alternative is being put forward by Klemweb and Maurice Blackburn, it is a viable alternative.
155 In the circumstances of this case, I do not consider it appropriate for the Klemweb proceeding to proceed on a closed class basis alongside the Impiombato proceeding. The claims of the group members in the Klemweb proceeding are (subject to opting out) covered by the Impiombato proceeding. To have both proceedings continue side-by-side would be likely to result in considerable duplication in legal work and thus increase the overall costs of the proceeding. While this would benefit the lawyers, it is unlikely to benefit the group members. Additional legal costs are likely to deplete any amount that is recovered by way of settlement or judgment. Further, having both proceedings continue side-by-side is likely to make the conduct of the proceedings less efficient than would otherwise be the case.
156 I note that in Bellamy's an option along the lines proposed by Klemweb was adopted. However, as the Full Court in GetSwift emphasised, each case turns on its own facts and circumstances and determining how the proceedings should be constituted commonly involves weighing up what may be incommensurable and sometimes conflicting considerations. In GetSwift, the Full Court held that no error had been shown in the primary judge's exercise of discretion (which was to stay two of the three proceedings). The Full Court also stated that, had error been shown, and the Full Court been called upon to exercise the discretion, it too would have stayed two of the three proceedings: at [163].
157 I am mindful of the fact that a substantial number of group members in the Klemweb proceeding have entered into a retainer with Maurice Blackburn, and that a permanent stay of the Klemweb proceeding would cut across those contractual arrangements. The retainer signed by those group members provides for the proceeding to be conducted on a no-win / no-fee basis, which is likely to be less expensive than the funding arrangement in the Impiombato proceeding. While the Court must be cautious about cutting across these contractual arrangements, in my view, the cost and inefficiency of having both the Impiombato proceeding and the Klemweb proceeding go forward side-by-side outweigh that consideration. The advantages in having only one of these proceedings go forward are considerable. I think this course is the preferable one in the interests of group members of both proceedings. Accordingly, I reject the option that the Klemweb proceeding continue on a closed class basis, and will permanently stay that proceeding. I will reserve liberty to apply in case there are any issues arising in relation to the permanent stay. For example, I note that the Klemweb retainer agreement contains a clause to the effect that the claimant instructs Maurice Blackburn to file an opt out notice on the claimant's behalf in the event that the claimant is identified as a class member in a competing class action (clause 4.1(i)). If an issue arises in relation to this clause, it could be raised pursuant to the liberty to apply order.
158 In relation to the LACERA proceeding, it is unnecessary to consider whether the proceeding should continue on a closed class basis in circumstances where, apart from LACERA, there are no signed up group members. Further, LACERA did not make a submission that its proceeding should, as an alternative, continue on a closed class basis. (I put to one side whether LACERA may wish to, in effect, convert its proceeding into a proceeding solely on its own behalf. The proceeding is presently constituted as a representative proceeding. LACERA did not indicate that if unsuccessful in relation to the Multiplicity Question it would wish to pursue the proceeding on its own behalf. I will, however, reserve liberty to apply, and it would be open to LACERA to raise this matter.)
159 As indicated above, I consider it appropriate to temporarily stay the LACERA proceeding for a period of time to enable the applicant in the Impiombato proceeding to investigate and consider potential claims based on the additional period. I propose to order that, subject to further order, the LACERA proceeding be stayed until 1 September 2019. This date can be revisited in due course if appropriate. I note that it would be inconsistent with the thrust of these reasons (as well as the approach adopted to date by LACERA) for LACERA (or its lawyers or funders) to undertake a book building exercise while the proceeding is stayed.