Jennings v Jaguar Land Rover Australia Pty Ltd

ANALYSIS 22 The draft notice of appeal raised four proposed grounds of appeal, but having regard to our view that the Jennings applicant established the allegation of procedural unfairness, it is unnecessary to deal with them. At the heart of that allegation is the contention that the primary judge denied the Jennings applicant procedural fairness in relation to the two critical considerations on which the carriage decision turned. 23 First, that the effect of Order 2, which disposed of the carriage application, was to give the Greentree applicants an opportunity, which may be described as an option, to meet the funding arrangements offered in the Jennings proceeding. The order did so in circumstances where: (a) the Greentree applicants had declined an express opportunity to meet the Jennings' funding arrangements during the hearing; (b) the opportunity was given on the basis that if it was taken up, the Greentree applicants would win the carriage application; (c) the opportunity was only provided to the Greentree applicants, and no corresponding opportunity to offer improved funding arrangements was given to the Jennings applicant; (d) no opportunity was given to the Jennings applicant even to make submissions as to what was occurring, ie whether such an option should or could be given; and (e) the Jennings applicant could not reasonably have foreseen from anything said during the hearing that the primary judge would make such an order. 24 Secondly, that in concluding that Gilbert + Tobin were likely to conduct the present proceedings more efficiently than Maurice Blackburn because Gilbert + Tobin had successfully conducted the Toyota class action, the primary judge acted on a subjective assessment of Gilbert + Tobin's conduct of those proceedings formed on the basis of facts which were not and could not have been known to the Jennings applicant. It was said that the primary judge erred by becoming a witness in the case. 25 A tight rein must be kept on applications for leave to appeal against discretionary judgments in multiplicity disputes. There is no one right approach to resolving the case management difficulties presented by competing class actions, and different judges may weigh the relevant considerations differently. Even so, having given careful consideration to the evidence, and having regard to the parties' submissions, we are satisfied that the Jennings applicant was not accorded procedural fairness, and the first of the two alleged errors is sufficient to justify appellate interference. 26 It was procedurally unfair for the primary judge to grant carriage to the Greentree applicants, and to stay the Jennings proceeding, by permitting the Greentree applicants to make a revised funding offer after the hearing, and without notice to the Jennings applicant such that the Jennings applicant had no opportunity to make submissions in relation to that, and no corresponding opportunity to revise their funding offer. The unfairness is clear given that the primary judge considered that the fact that the Jennings proceeding offered superior returns for group members was determinative. His Honour said that unless the Greentree applicants also capped their fees and funding costs at 25% of any aggregate settlement or judgment the Greentree proceeding would be stayed and the Jennings proceeding would go forward. 27 In written submissions the Greentree applicants contended as follows: During the course of oral argument (which focused on two factors - funding models and comparative subject-matter experience), [the primary judge] informed the parties, in the context of a discussion initially directed to consolidation, that he wished to procure a solution whereby group members obtained "the best of both worlds": T 54.40-55.6; T 55.19-30. In this context, his Honour expressly contemplated and raised with the parties the possibility of the Greentree applicants altering their funding model after the hearing of the applications; indeed, his Honour specifically invited submissions as to whether that would be against principle for him to proceed in that way. (Emphasis added.) 28 If that had been true, it may have been a real answer to the Jennings applicant's complaint as to an absence of procedural fairness. However, having regard to the transcript, that assertion of fact is unfounded. 29 The transcript of the hearing below shows that the Greentree applicants informed the primary judge that neither of the applicants advocated for consolidation as their primary position: T53.34. The primary judge then floated the idea of an order to consolidate the two proceedings on the basis of the Jennings funding arrangements: T54.40-47. Senior counsel for Jaguar then reminded the primary judge that the difficulty with that proposal was that Greentree had not said it was prepared to do so. His Honour then asked whether there was anything wrong in principle with orders which would give group members "the best of both worlds". His Honour proposed orders to consolidate the proceedings using the Jennings' funding arrangements, provided both applicants agreed within 14 days. If the applicants did not agree within 14 days, then his Honour would decide the application by choosing one of the competing proceedings to go forward: T55.19-26. 30 At that point senior counsel for Jaguar submitted that if the Greentree applicants were prepared to accept the Jennings' funding arrangements, then there would be no need for consolidation, because the primary judge could give them carriage: T55.32-36. His Honour then enquired of senior counsel for the Greentree applicants as to whether he had instructions to offer funding arrangements "along the lines" of the Jennings' funding arrangements. Senior counsel for the Greentree applicants informed the primary judge that he did not hold such instructions, and instead made submissions seeking to persuade his Honour that the advantages his Honour saw in the Jennings' funding arrangements were not pronounced and involved guesswork. 31 Importantly, at no point in the hearing did the primary judge raise the possibility of an order such as Order 2, nor provide an opportunity to the Jennings applicant to be heard as to that. The Jennings applicant would have been perfectly justified in understanding that the Greentree applicants had no opportunity, nor any intention, to cap its legal and funding costs at 25% of any aggregate settlement or judgment. There was no opportunity for the Jennings applicant to make submissions in relation to a proposition that was not on the table. 32 There is no basis for the Greentree applicants' submission that the primary judge "specifically invited submissions as to whether it would be against principle for his Honour to proceed in that way". In oral submissions, senior counsel for the Greentree applicants initially sought to defend that submission but ultimately withdrew it. That submission, which had no basis in the evidence, should not have been made. 33 Senior counsel for the Greentree applicants then substituted that submission with a contention that the primary judge put on the table a "best of both worlds" solution in the context of consolidation, and invited submissions as to whether it would be against principle for him to proceed to adopt that solution. On this argument, the primary judge identified one possible "best of both worlds" solution, and senior counsel for Jaguar then identified another "best of both worlds" solution, being that the Greentree applicants could decide to revise their funding arrangements and there would be no need for consolidation. 34 That submission has no merit. Mr Darke's submission was that "[i]f Gilbert + Tobin are prepared to accept the Maurice Blackburn funding terms, then there's no … need for consolidation". And senior counsel for the Greentree applicants promptly said that he had no instructions to meet the Maurice Blackburn funding terms, and instead sought to persuade his Honour that the perceived advantages of those terms were illusory. Again, the Jennings applicant would have been justified in understanding that the Greentree applicants would have no further opportunity, nor any intention, to cap its legal and funding costs at 25% of any aggregate settlement or judgment. 35 The Greentree applicants further contended that through: (a) the orders made on 12 October 2023; (b) the primary judge's reasons; and (c) by communications from Chambers, his Honour preserved the ability for the Jennings applicant to make submissions in opposition to the orders granting carriage to the Greentree applicants. The Greentree applicants submitted that: … the primary judge did expressly canvass before the parties the prospect of ascertaining whether G + T and Balance would match the terms upon which the Jennings proceedings was funded. His Honour also made provision for re-listing, indicated that he would allow any party to relist for further submissions in respect of his proposal, and invited further submission after the proposed undertaking was delivered pursuant to order 3, and before it was accepted by the Court pursuant to orders 2 and 4: T 55.19-30. The Greentree applicants said that it was open to the Jennings applicant to object to the course the primary judge took in the orders and reasons delivered on 12 October 2023, prior to the primary judge's acceptance of the undertaking proffered by the Greentree applicants. They also said that it was open to the Jennings applicant to propound evidence that she could offer better terms still to those prescribed in the primary judge's order 2, but the Jennings applicant chose not to do so. 36 That submission is, again, without merit. Order 2 of the orders made on 12 October 2023, provided for the automatic staying of the Jennings proceeding "upon the receipt and acceptance by the Court of the proposed undertaking as an undertaking to the Court". That order took effect on the date that it was made. It was conditional but self-executing. It is true that the stay did not come into effect until the undertaking was accepted by the Court on 15 November 2023, and also true that Order 5 granted liberty to the parties to apply. But on no reasonable view was it open to the Jennings applicant to re-contest the matters which the primary judge had already decided and in respect of which he had published written reasons. 37 Nor is there anything in the primary judge's reasons to show that his Honour left open the prospect for the Jennings applicant to re-contest the matters which the primary judge had already decided. Rather, the reasons indicate that his Honour intended that any submissions on 15 November 2023 would relate to whether the form of the proposed undertaking was appropriate. His Honour said (J [104]): It may be that an undertaking will not be provided or be provided in a form which is said to contain deficiencies. Accordingly, I will require the proposed undertaking to be provided to the Court and served on the solicitors for the Jennings proceeding, and I will give leave to any party to relist the matter for the purposes of further argument and, if there is no further argument, for receipt of the undertaking in open Court. His Honour did not state that he would hear argument re-contesting the matters the subject of the judgment he had just delivered, and the principle of finality of litigation strongly indicated otherwise. 38 The communication from the primary judge's Chambers upon which the Greentree applicants sought to rely does not take matters anywhere. They relied on an email from his Honour's Chambers to the parties on 9 November 2023, which relevantly said: In the light of the provision of the undertaking by the applicants in NSD1010/2022, Gilbert + Tobin and Balance Legal Capital II UK, his Honour has determined it is appropriate to relist both proceedings for case management at 3 PM on Wednesday, 15 November 2023 in person in Sydney. His Honour is open to hearing any submissions concerning the appropriate orders to be made. 39 Contrary to the Greentree applicants' argument, the phrase "any submissions" did not indicate that it was open for the Jennings applicant to re-contest the matters already decided. The only course available to the Jennings applicant following the orders of 12 October 2023 was to seek leave to appeal from those orders, which she did. The invitation to make submissions was obviously in relation to further case management and, given paragraph [104] of the primary judge's reasons, possibly in relation to the form of the undertaking. It was not an invitation at large. 40 The Jennings applicant thereby established an error sufficient to warrant a grant of leave to appeal, and for the appeal to be upheld. 41 For completeness, we note that we are not persuaded that there was any procedural unfairness in the way in which the primary judge took into account Gilbert + Tobin's successful conduct of the Toyota class action. The conduct of that case is a matter of public record, including a statement in the reasons for judgment that counsel and the solicitors for the parties had conducted the hearing with great efficiency, courtesy and professionalism which had been of great assistance to his Honour: Williams v Toyota Motor Corporation Australia Limited (Initial Trial) [2022] FCA 344 at [544]. Gilbert + Tobin's conduct of that case, including the specialist experience that it had gained, was the subject of evidence and submissions before the primary judge. We are not persuaded that his Honour went beyond the evidence and the uncontested matters of public record in reaching the conclusion that he did in relation to Gilbert + Tobin's superior experience; the primary judge did not "become a witness in the case". 42 We have made the attached orders. The Full Court will resume the hearing to re-exercise the discretion in relation to the carriage dispute if the consolidation application is not made, or if consolidation is refused by the Court. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Murphy, Thawley and Stewart.

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