Plaintiff v Defendant

1 Brett Stallard and Steven Napier have each issued proceedings against Treasury Wine Estates Limited (Treasury), a company listed on the Australian Stock Exchange, for alleged breaches of Treasury's continuous disclosure obligations[1] and related misleading conduct. Each is a representative proceeding issued under Part 4A of the Supreme Court Act 1986 (Vic) on behalf of persons who were shareholders of Treasury during the period 30 June 2018 to 28 January 2020. The proceedings concern the same causes of action, in which the factual allegations made in each claim are not identical but are substantially similar.

2 Each plaintiff represents an "open" class; neither proceeding is confined to group members who are represented by a particular funder or solicitor.

3 The question for decision in this case is whether Mr Napier and Mr Stallard (Napier and Stallard; together, the plaintiffs) should be permitted to jointly represent the class as plaintiffs in a consolidated proceeding, with their respective solicitors named on the record jointly.

4 It was not in dispute that the Court has power to order a consolidation of the proceedings and to appoint two firms solicitors to act on the record. The question is whether the proposed orders are an appropriate exercise of discretion in the circumstances of this case.

5 It is well recognised that the running of multiple overlapping or competing representative actions that raise the same or substantially the same issues against the same defendant is potentially inimical to the administration of justice, in particular to the interests of group members and potentially oppressive to the defendant.[2] The problem of multiple overlapping group proceedings has been considered in numerous cases in which the solutions adopted have included staying one or more of the competing proceedings; the consolidation of proceedings (including with joint legal representation), and the joint management and joint hearing of proceedings.[3]

6 Once the multiplicity issue became apparent in these proceedings I made case management orders requiring the parties to confer and to file proposed orders and supporting material on the multiplicity question.

7 Treasury initially advanced cascading alternative orders, its preferred position being a stay of one or other of the proceedings.

8 Napier and Stallard reached, between themselves, a consent position, namely to apply for orders that the proceedings should be consolidated with each being made a plaintiff in the consolidated proceeding and leave being granted for their solicitors, Slater & Gordon and Maurice Blackburn, to act in the proceeding and be jointly named on the record. They proposed a protocol and orders for joint representation and costs containment. They reached agreement on that "package" of measures.

9 Treasury's position then evolved, such that it no longer pressed for a stay but consented to consolidation of the proceedings but opposed joint representation.

10 The plaintiffs submitted that their proposed solution to the multiplicity problem would achieve experienced and capable representation for group members which would ensure that their interests were properly, efficiently and effectively advanced in the litigation. While they could not gainsay the fact that there would be some extra legal work created by permitting two firms to appear on the record, the burden of extra legal costs would be ameliorated by the orders and protocols they proposed. They submitted that the consolidation of the proceedings with a grant of leave for joint legal representation would create efficiency and avoid delay in the proceedings. A contest between plaintiffs and law firms for carriage of a consolidated proceeding, or a contest about how the proceedings would otherwise be managed, would require further evidence and subsequent consideration. The need to decide that dispute would consume resources and generate costs, when compared with the alternative proposed. The result was that the joint proposal would ensure appropriate representation for group members and did not entail detriment to group members or to the defendant, and would achieve a positive benefit in the form of a specific saving of time and costs in the immediate term.

11 Treasury submitted that joint representation would result in an overall increase of costs which could not be justified in the circumstances as an order that was necessary or appropriate to do justice in the proceeding, and that the alternative course could be resolved without significant investment of time or costs.

13 First, Slater & Gordon and Maurice Blackburn act for Stallard and Napier respectively, on a "no win no fee basis" which relevantly means that the law firms are funding the proceedings and will not be paid unless a successful outcome results. Neither proceeding involves a third party funder.

14 Second, when the proceedings were commenced (by Stallard in March and by Napier in May 2020) it was anticipated that the Justice Legislation (Miscellaneous Amendments) Bill 2019 (Vic) would be passed in the near future. On 1 July 2020 parts of that bill became s 33ZDA of the Supreme Court Act, which now provides that in a group proceeding, on the application of a plaintiff and subject to the requirements of the section, the Court may order that the legal costs be payable to the law practice representing the plaintiff and group members be calculated as a percentage of the amount of any award or settlement that may be recovered in the proceeding, and that liability for payment of the legal costs must be shared among the plaintiff and all group members (Group Costs Orders).

15 At the time at which I put in place procedural orders for the determination of the multiplicity issue (on a timetable proposed by the parties) the bill had not yet been passed. The plaintiffs indicated informally that they may in due course seek group orders. They confirmed their intentions to do so in submissions filed on the present application. All parties agreed that this application should be determined without assuming that a Group Costs Order would be made. I accepted that that was an appropriate course, for the simple reason that no such application has yet been made. Sensibly, it was not suggested that it would be practicable to consider the available alternatives for managing the multiplicity problem by hypothesising about what different factors would be relevant were a Group Costs Order made.

16 For the reasons that follow, the plaintiffs' application for consolidation of the proceedings Brett Stallard as trustee for the Stallard Superannuation Fund v Treasury Wine Estates Ltd (S ECI 2020 01590) and Steven Napier v Treasury Wine Estates Ltd (S ECI 2020 01983) and leave for Maurice Blackburn and Slater & Gordon to be named jointly as solicitors on the record for the join plaintiffs in the consolidated proceeding, will be granted. In the circumstances, having regard to the evidence before me, I consider that orders for consolidation with joint representation on the terms annexed to these reasons:

(a) will properly protect and promote the interests of group members in relation to the prosecution of the proposed consolidated proceeding;

(b) will not detrimentally affect the interests of the defendant;

(c) will give effect to the overarching purpose, in particular by facilitating the efficient disposition of the business of the court, the efficient use of judicial resources and the timely determination of the proceeding, and in facilitating the more efficient and timely determination of the proceeding, will advance the interests of group members.

Those orders are accordingly "appropriate or necessary to ensure that justice is done in the proceeding" as required by s 33ZF of the Supreme Court Act.

17 I will make orders substantively as set out in the Annexure to these reasons.

Part B - Legal framework - Overlapping Representative Proceedings

18 The problem of multiplicity in group proceedings has been considered in numerous proceedings, for the most part in the Federal Court and in the New South Wales Supreme Court, under Part IVA of the Federal Court Act 1976 (Cth) and Part 10 of the Civil Procedure Act 2005 (NSW), which are cognates of Part 4A of the Victorian Supreme Court Act. Each of those Acts permit a plaintiff to commence proceedings representing some or all of the persons whose claims meet the stipulated threshold requirements.[4] No relevant legislative regime includes a certification process by which only one of two or more representative proceeding is permitted to go forward, or by which one set of class representatives is chosen.[5]

19 Section 33ZF of the Supreme Court Act provides that in a proceeding conducted under Part 4A of the Act the court may, of its own motion or an application by a party, make any order the court thinks appropriate or necessary to ensure that justice is done in the proceeding. Orders facilitating the management of multiple overlapping representative proceedings have been made under the equivalent provisions in the Federal Court Act (s 33ZF), and the Civil Procedure Act NSW (s 183).

20 Section 33ZF confers on the court a broad power which extends to encompass all procedures, including interlocutory orders, necessary or appropriate to bring the matter to a fair hearing on a just basis.[6] In exercising a power of this kind the court has a protective role in respect of group members, whose interests are to be given primary consideration.[7] Where a proposal to resolve a multiplicity problem affects the defendant, its interests are also relevant. The interests of funders and law-firms acting in representative proceedings are not.[8]

21 A just resolution of a dispute is to be understood in light of the purposes and objectives of the Civil Procedure Act 2010 (Vic) (the CPA) and like provisions, and the public interest in avoiding delay and expense in the administration of justice.[9] In exercising the power conferred by s 33ZF I am required to seek to give effect to the overarching purpose defined in the CPA (which is to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute), and to further that purpose by having regard to objects set out in the CPA which include:

(a) the just determination of the proceeding;

(b) the public interest in the early settlement of disputes by agreement between the parties;

(c) the efficient conduct of the business of the court and the efficient use of judicial and administrative resources;

(d) minimising any delay between the commencement of the proceeding and its listing for trial beyond that reasonably required for any interlocutory steps that are necessary for the fair determination of the real issues in dispute and the preparation of the case for trial;

(e) the timely determination of the civil proceeding.[10]

22 It has been recognised that there are a variety of ways in which multiple overlapping proceedings can be managed. As the Full Court of the Federal Court has observed, there is no one right answer to questions that arise in this context and no "silver bullet" solution to a problem that may require weighing incommensurable and competing considerations. Each solution may be unsatisfactory in one way or another.[11]

23 The methods employed have included the staying of one or more overlapping proceedings, the consolidation of proceedings, and the joint management and joint hearing of proceedings (without staying any of them or consolidating them), and with or without the "closure" of open classes.[12]

24 The decision as to how to manage competing class actions is quintessentially a case management issue to be answered by reference to the circumstances at hand.[13]

25 The question as to what considerations may be appropriately taken into account on the exercise of discretion when choosing between competing open-class group proceedings and between competing representatives, or when deciding to stay one or more of the competing proceedings, is presently the subject of an appeal to the High Court in the case of Wigmans v AMP,[14] in which special leave to appeal was granted in April 2020 from a decision of the New South Wales Court of Appeal.

26 There, the Court of Appeal had upheld the trial judge's decision to stay three of four competing representative proceedings, and to select the case that was to proceed, on the basis of a "multi-factorial analysis" which included the funding terms likely to deliver lower costs and therefore better returns to group members. The questions in Wigmans are whether a second or later filed duplicative representative proceeding should be regarded as prima facie vexatious or oppressive and liable to be stayed unless it affords a traditional juridical advantage (establishing that the first issued proceeding is "clearly inappropriate"); and whether the court has a protective jurisdiction to stay the first filed action on the basis of a forward looking prediction that if the matter is successful, the later filed action might yield a higher return for group members. If so, how is that power to be exercised consistent with judicial method.[15] On the latter question the issue is what are the relevant factors that may or may not be taken into account, in the absence of a statutory certification procedure.[16] Consolidation of the competing proceedings was not sought by the parties and was not in issue in Wigmans.

27 Courts have to date, considered that a second or subsequently issued representative proceeding is not prima facie vexatious and oppressive,[17] reflecting the view that the legislation contemplates that there may be more than one proceeding against the same respondent in respect of the same subject matter.[18]

28 Consolidation of competing proceedings is the tool most commonly deployed to address the problem of multiplicity.[19] Consolidation is attractive for the obvious reason that it puts an end to the existence of multiple proceedings. It has been recognised that while there is power to consolidate even without the parties' consent, difficulties can arise where there is no agreement between the parties or their representatives, as to consolidation. Those difficulties may be compounded where third party funding is involved.[20] Consolidation of proceeding is thus, more commonly, facilitated by the consent of the parties in the overlapping proceedings. In that context, the question of consolidation has arisen in earlier cases in conjunction with the question whether the legal representatives of the parties should be permitted to jointly appear on the record in a consolidated proceeding in which those parties become joint plaintiffs.

29 There exists a long-standing rule of practice, developed well before courts had to grapple with the problem of multiplicity in group proceedings, that plaintiffs in consolidated proceedings are not entitled, without leave, to separate representation. Being a rule of practice, it recognises that an order for separate representation may be made in the court's discretion. A grant of leave would most commonly be made to avoid a conflict of interest between plaintiffs, and otherwise to avoid an injustice, but will depend on the facts in the particular case.[21] The rule is said to derive from the 1853 case of Wedderburn v Wedderburn.[22] Wedderburn did not itself concern the specific question of separate legal representation of plaintiffs in a single action, but stands for the more general proposition that plaintiffs joined in an action must act together, meaning not inconsistently from one another.[23] Separate representation may of course give rise to the risk of inconsistency. A particular concern is the forensic difficulty that may be caused at the trial of separately represented plaintiffs.[24] Outside of the context of representative proceedings the rule appears to have been considered relatively infrequently but was affirmed in Victoria in Goold & Porter Pty Ltd v Housing Commission.[25]

30 Where separate representation is permitted the general rule is that it will be proper for an unsuccessful party on the opposing side to be burdened with only one set of adverse costs.[26]

31 Overlapping group proceedings provide a particular context for the exercise of discretion to grant leave for joint plaintiffs to be jointly represented. As Murphy J explained in Southernwood, the older authorities concerning separate representation must, in the context of group proceedings, be understood in light of the power conferred by s 33ZF to make any order that the court thinks appropriate or necessary to ensure that justice is done in the proceeding, and should be not understood as derogating from that power.[27] They should also be considered in light of the obligation of courts to promote the overarching purpose.[28] His Honour went on to observe that the Federal Court has regularly made orders to consolidate competing class actions and to permit two firms of solicitors to represent the applicants in the consolidated proceeding.[29]

32 The handful of cases in which the present issue has arisen reveal that the value of a proposed solution the problem of multiplicity should be considered in light of the alternatives,[30] which are not to be considered in the abstract but in relation to the particular facts in issue.

33 The parties in this case placed particular emphasis on single-judge decisions in which the question in issue was substantially the same as the question here (whether to permit consolidation with joint representation) and in which opposite results were reached. Each case is of course an instance of an exercise of discretion on the particular facts before the Court.

34 The plaintiffs focused attention on the decision of Murphy J in Southernwood in which his Honour made orders substantially similar to those sought by the plaintiffs here. They drew particular attention to his Honour's analysis of the regime for co-operation between the plaintiffs and their solicitors (Maurice Blackburn and Slater & Gordon) which, Murphy J said, did not involve the defendant being faced with two legal firms of solicitors doubling up on the work to be done, but rather, resourcing of the case as if for a single action, and solicitors acting, inter partes, as one.[31]

35 It was accepted in Southernwood that allowing two firms of solicitors to jointly represent the applicants involved a risk of duplicated legal work and higher costs than if they were represented by one firm, but that the co-operation protocol and related orders were expected to substantially reduce the risk of unnecessary or duplicated costs. On the question of internal decision making (which the defendant said was a risk where two solicitors were appointed) his Honour considered that the need for negotiation and resolving conflicts about strategy could also be expected to arise within a single firm acting via a large team of lawyers in a substantial piece of litigation and that the protocols were suited to manage any difficulty. It was relevant that any excess costs generated by joint representation could be identified, including by the appointment of an independent costs consultant, and subsequently considered before any settlement was approved.[32] An important consideration in Murphy J's decision was the fact that each of Maurice Blackburn and Slater & Gordon and their respective litigation funders, had entered into contracts with a significant number of group members, whose claims had significant value.[33] That fact militated against permanently staying one of the proceedings or appointing one firm of solicitors.[34]

36 The defendant placed considerable reliance on an ex tempore decision of Hammerschlag J of the New South Wales Court of Appeal in Pallas v Lendlease[35] in which the plaintiffs in overlapping shareholders' representative proceedings proposed consolidation and joint representation in a suite of measures which also appear to have been substantially similar to the package proposed by Napier and Stallard here. Hammerschlag J rejected the plaintiffs' package proposal. His Honour was not persuaded that there was reason to depart from the rule against joint representation and reasoned that the risk of increased costs, were two firms allowed, was real.[36] In those circumstances Hammerschlag J ordered consolidation with a view to appointing a single law firm to represent the class and said that the solicitor who would be on the record could, on instructions, enter into arrangements with the other firm to be consulted or for the workload to be shared. The terms on which that might be done were a matter for the parties and could be left to them.[37] His Honour said that the procedure for determining who the solicitors should be, could be managed by adopting a modified form of Scott Schedule, adopting the approach taken in forum non conveniens applications.[38]

37 Treasury submitted that the Federal Court authorities in which leave for joint representation has been granted or discussed (in conjunction with consolidation) as a solution to the problem of multiplicity, should now be viewed with some scepticism. In those decisions, Treasury submitted, the interests of litigation funders and solicitors who fund litigation were regarded as relevant considerations in determining how to manage competing representative proceedings; whereas the High Court in BMW v Brewster and Westpac v Lenthall[39] (Brewster) has since made clear that those interests are irrelevant.

38 Treasury's submission was over-reaching. Treasury was right to say that on an application of this kind, the interests of litigation funders and solicitors who fund litigation are irrelevant. But that proposition was not in contention and was well-established before the High Court's decision in Brewster.[40]

39 Brewster dealt with the specific question whether s 33ZF of the Federal Court Act and s 183 of the Civil Procedure Act NSW, empowers a court to make a "common fund order". That issue does not arise in this case. The New South Wales Court of Appeal (in BMW v Brewster[41]) and the Full Court of the Federal Court (in Westpac v Lenthall[42]) had each found that the making of a common fund order was within the reach the relevant legislative provisions. As the Full Court of the Federal Court put it, the power was, "wide enough to deal, in a fair way, with circumstances that will remove a risk to the prosecution and vindication of the group's rights."[43] The High Court disagreed, deciding that while those sections empower the making of orders as to how an action should proceed in order to do justice they are not concerned with the "radically different" question as to whether an action can proceed at all. It is not appropriate or necessary to ensure that justice is done in a proceeding for a court to promote the prosecution of the proceeding in order to enable it to be heard and determined by that court.[44]

40 It was not submitted in this case that an order permitting consolidation with joint representation would be an order that was not concerned with how the action should proceed, or was otherwise beyond power.

41 It is true that in cases considering how to manage competing proceedings including how to choose between them, the Federal Court has also considered and granted applications for common fund orders. But the power to make those orders and the considerations informing whether they should be made are separate questions from the considerations informing whether competing proceedings might be appropriately managed by ordering consolidation, including with joint representation. The means of funding proposed in competing proceedings is a factor by which (among other factors) competing proceedings may be compared.[45] That fact does not support Treasury's argument.

42 Treasury was unable to demonstrate that the reasoning in earlier decisions allowing or identifying consolidation with joint legal representation as an appropriate means of resolving completing group proceedings turned on the recognition of funders' interests, on "macro-economic considerations" (as Treasury put it) or on the question whether an order for joint representation would facilitate the commercial viability of the proceeding in question by taking into account the interests of funders or solicitors. Treasury's contention was not made good by reference to the reasoning in the cases it cited on this issue.[46]

Part C - Analysis of the Factors relevant on this Application

43 Treasury advanced its Brewster argument in support of the contention that once it is recognised that funders and solicitors' interests are irrelevant, the plaintiffs' proposal for joint representation should be rejected. It should be rejected because it is a proposal that suits the interests of the plaintiffs' solicitors. That conclusion should be drawn because there is no basis for concluding that group members' contractual choice requires an order for joint representation (as to which, see below).

44 The difficulty with Treasury's analysis is not its first premise, that the interests of solicitors and funders are irrelevant in this exercise. That premise is obviously correct, and the plaintiffs did not contend otherwise.

45 The difficulty with the analysis is that it incorrectly assumed that were the Court to make an order in the present circumstances permitting joint representation, the only purpose or rationale for doing so would be to advance the interests of the respective plaintiffs' solicitors. It is a well-recognised fact that except where a group proceeding is self-funded by group members (an uncommon circumstance) the persons involved, including solicitors and funders, will have their own self-interests.[47] Recognising that fact and then positing that a particular solution (an order or set of orders) is consistent with the self-interests of a solicitor-funder, does not assist in identifying how such an order would affect the interests of the relevant parties, namely group members and the defendant. It does not answer the question whether, having regard to those interests, such an order would be appropriate or necessary to ensure that justice is done in the proceeding; it does not determine whether a particular solution would give effect to the overarching purpose.

46 To answer those questions it is necessary to consider the effect of the proposed orders and any alternative from the perspective of the relevant persons (first group members, second, the defendant) and in light of the considerations required to be taken into account in giving effect to the overarching purpose.

47 The following considerations inform the identification of an appropriate solution to the problem of multiplicity in this case:

(a) what is contemplated by the proposed consolidation with joint representation;

(b) how an order for consolidation with joint representation would affect the interests of group members;

(c) how such an order would affect the interests of Treasury;

(d) alternative options.

48 The central elements of the Napier and Stallard proposal for the conduct of a consolidated proceeding with joint representation, are these:

(a) Stallard instructs Slater & Gordon and Napier instructs Maurice Blackburn;

(b) Each of Napier and Stallard undertakes[48] to the Court to enter into a co-operative litigation protocol (the Protocol) and to instruct his solicitors to comply with the Protocol in conducting the proceeding;

(c) Each of Maurice Blackburn and Slater & Gordon undertakes to the Court to conduct the proceedings in accordance with the Protocol;

(d) The interests of group members is to be the primary consideration in interpreting and giving effect to the Protocol, which includes provisions to the following effect:

(i) One set of counsel will be briefed to represent the plaintiffs and group members in the consolidated proceeding;

(ii) The plaintiffs will nominate one address for service and will jointly conduct correspondence with the defendant and the Court, save where it is agreed between them that one firm will conduct the correspondence on behalf of both of them. The effect is that as far as the Court and the defendant are concerned, the joint plaintiffs and their representatives will be acting as one;

(iii) The plaintiffs will jointly make and respond to interlocutory applications, jointly retain and brief expert witnesses; and jointly make and receive discovery (using the nominated agreed form of document management software, and such that the defendant does not have to produce discovery to the two plaintiffs separately);

(iv) Out of pocket expenses and disbursements will be shared and paid according to a specified formula and related provisions;

(v) Work is to be distributed between the firms with the objective of avoiding duplication of cost and effort, in a manner which insofar as is possible ensures the number and seniority of personnel conducting a task will be no more than if there were a single firm conducting the proceeding;

(vi) The solicitors will convene a litigation committee comprising two lawyers from each firm, that will be responsible for managing the litigation, making major decisions in the litigation (which are defined) and determining the distribution and co-ordination of work between the firms. The litigation committee is to operate by unanimous agreement, and where the litigation committee is unable to reach unanimous agreement on any decision relating to the proceeding, the matter will be referred to the most senior counsel retained in the proceeding, or to an independent adjudicator, whose decision will be binding;

(vii) Maurice Blackburn and Slater & Gordon are to work together to avoid duplication of work;

(viii) An independent costs referee is to be appointed for the purpose of conducting six monthly inquiries and preparing written confidential reports on the question whether there is any duplicated work;

(ix) The Protocol may only be terminated or materially amended by order of the Court.

49 Julian Schimmel of Maurice Blackburn and Mathew Chuk of Slater & Gordon each gave evidence by affidavit about their own experiences and their firms' experiences of working co-operatively with other firms in arrangements to jointly conduct representative proceedings. Both are senior and experienced lawyers.

50 The evidence was that both firms have considerable experience in conducting group proceedings including shareholder actions and in conducting proceedings jointly with other firms, in numerous configurations including where two firms have been named on the record jointly. Maurice Blackburn and Slater & Gordon have jointly conducted seven class action proceedings together,[49] in six of which they were named jointly on the record. The proceedings have been conducted successfully, including three concluded by court-approved settlement.[50] Maurice Blackburn has also co-operatively conducted class action proceedings with other plaintiff firms.[51]

51 On the subject of two firms working together, both witnesses said in substance, that complex, multi-party litigation, when conducted by a single firm, commonly involves a number of lawyers at varying levels of seniority meeting regularly to collectively make decisions, and that the joint conduct of a consolidated proceeding by two firms involves making decisions and performing legal work in very much the same way as a single team of solicitors from one firm would operate, save that the manner of working is formalised in a protocol. Mr Schimmel described the measures that would be adopted to enhance and manage co-operation between the firms, including by the assignment of work by senior lawyers and the use of project-management software applications which enhance synchronising work flow.

52 Treasury raised several issues concerning the Protocol, although some of them were resolved by revisions made subsequent to the hearing, and on which Treasury had the opportunity to make further submissions. Some of the matters raised were the subject of evidence by Mr Damien Grave, a partner of Herbert Smith Freehills, who has extensive experience in the conduct of representative proceedings.

53 Treasury's submissions emphasised the likelihood of the duplication of costs that would be caused by the joint appointment of the two law firms. I shall return to the question of costs momentarily. Treasury submitted that the risk of disputes between members of the proposed joint legal team was evidenced by provision for dispute resolution in the Protocol. Separately, Mr Grave said that in his experience it is easier for representative proceedings to settle if there is only one firm of solicitors to negotiate with rather than multiple firms of solicitors. That evidence was in very general terms. Treasury sought to analyse the returns to group members compared with costs, in representative proceedings in which Slater & Gordon and Maurice Blackburn had acted jointly, submitting that the net returns were at the lower end of the "scale". Mr Grave also said that the proposed counsel team was larger than would ordinarily be expected.

54 Each of Mr Schimmel and Mr Chuk said in evidence in response that they had not, in any case where joint representation was appointed, had to resort to the use of a dispute resolution mechanism and that joint decision making had been workable and effective. On the question of counsel their evidence was that the number of counsel team actually engaged to perform work during any particular phase of the litigation would surge up and down depending upon the demands of the litigation and counsel's capacity. On the question of settlement, their experience did not accord with that of Mr Grave, and in the matters in which they had been involved, those on the plaintiff's side presented united positions, which was a natural consequence of the claims being conducted jointly. Their evidence about settlement was, like Mr Grave's evidence, also in very general terms.

55 In my assessment the proposed arrangement has characteristics that will facilitate a joint team comprised of lawyers from both firms acting consistently to prosecute litigation on behalf of plaintiffs and group members; that is, to act as one, when conducting the litigation, including when engaging with the Court and the defendant. The articulation of objectives and standards for the allocation of work and for decision making makes transparent assumptions of the kind that would likely underlie the conduct of significant litigation within a single firm.

56 If implemented, the arrangements would adequately protect against the risk of the forensic difficulties of the kind discussed in Lewis v Daily Telegraph. It is significant in that respect that a single counsel team would be engaged.

57 I do not consider that the articulation of the arrangements for joint conduct, including dispute resolution mechanisms, presages dissention. They are simple and sensible mechanisms of the kind commonly seen in joint venture agreements of various kinds. I accept that in any joint venture arrangement there is the possibility of dispute. But particularly given the manner of co-operation proposed, which would see the firms acting jointly rather than separately, and with a single team of counsel, and the evidence of Mr Schimmel and Mr Chuk as to their firm's repeated experience of arrangements of this kind working effectively, I do not regard that mere hypothetical possibility as a factor of real weight.

58 It is not possible to draw from the material presented by Treasury, a conclusion that joint representation leads to lower returns to group members. There are too many variables in the equation to permit cases of joint and single representation to be compared on a like for like basis, at least on the material before me. Treasury pressed that point only faintly. In the end Treasury's point reduced to the question of added costs.

59 On the question of costs several observations should be made.

60 First, although implementation of the proposed Protocol would likely go a considerable distance towards eliminating the double-handling of litigation work, it is true that the very existence of the processes and mechanisms needed to allow a team comprised of the members of two firms to work together as one, will require work that would otherwise not occur. By way of example, it will be necessary for the firms to communicate at a senior level in order to manage the joint process, and to implement certain administrative systems, including for record keeping and account payment. Certain joint processes would need to be established and maintained, allowing the plaintiffs' firms to communicate with each other, and to communicate jointly with third parties. I am not persuaded that the work of the litigation committee would, in the ordinary execution of its functions, be readily distinguishable from a group of senior lawyers at one firm working on a large litigation matter. However, I do accept that some of the functions of such a group would be attributable to the fact that the litigation was being conducted jointly. Further, any work and costs connected with dispute resolution and the proposed independent costs consultant would be costs occasioned by the appointment of two firms.

61 The upshot is that a margin of extra work would occur, generating costs that would not be incurred without the appointment of two firms, despite the requirement that would be imposed by the Protocol to avoid duplication of legal work. That proposition was not really contested by the plaintiffs.

62 The question then becomes what would happen with the costs generated by work that is performed by reason of the appointment of two firms rather than one firm, were that to occur (I shall refer to that work and those costs as duplicated work and duplicated costs).

63 The material filed by the plaintiffs was in parts unclear and inconsistently drafted. The proposal as presented at the hearing of the application envisaged that any costs approved by the Court consequent upon an award of damages or approval of a settlement would not include any amount referable to duplication. The result would be that such costs would not be recoverable against either group members or the defendant. The plaintiffs specifically provided that neither group members nor the defendant should bear any costs of resolving any disputes arising under the Protocol, or any costs of the independent referee.

64 That proposal reflected the plaintiffs' evident appreciation of the foundational proposition that any proposal for resolution of the multiplicity issue must not be inimical to the interests or group members, or to the defendant. It was also consistent with the plaintiffs' submission that were consolidation with joint representation allowed, group members would receive the benefit of two law-firms "for the price of one".

65 Costs attributable to duplication were, however, defined in a confusing and limited way ("costs identified by the costs referee as being unnecessarily or excessively duplicative"). After some discussion during oral submissions about what was intended by the reference to "unnecessarily or excessively duplicative" costs, it appeared that there was confusion in the plaintiffs' camp between "duplication" of work such as might occur in any case where more than one lawyer worked on a particular task (which might or might not be reasonable or recoverable), and work that would be caused by reason of the proposed appointment of joint representation. A revised form of the Protocol endeavoured to eliminate that confusion but perpetuated it by adopting an unclear definition of "duplicated work".

66 The revised Protocol and associated orders expressly provided that the costs arising from duplicated work not be recoverable against the defendant. The further submissions filed by the plaintiffs, however, said that the proper time for consideration of costs from group members should be at the conclusion of the proceeding.

67 I accept Treasury's submissions (made in the alternative to its primary submission) that any leave for joint representation should be on terms:

(a) that make clear that duplicated work means any work that is performed by reason of there being two firms representing the plaintiffs rather than one firm; and

(b) that make clear that the costs of duplicated work are not to be borne by the defendant or by group members.

68 I accept that the time for making orders that would result in any liability for costs being imposed on group members, absent exceptional circumstances, will not arrive until the determination or resolution of the proceeding. That said, it is appropriate that the implications of any joint representation order for group members be made clear at the outset.

69 Terms to that effect would reflect the intention apparent in the plaintiffs' proposal but imperfectly and unclearly expressed in the draft document prepared by the plaintiffs.

70 Finally on costs, the plaintiffs proposed that an independent costs consultant be appointed as a referee for the purposes of conducting inquiries every six months as to the question whether there is, in the consultant's opinion, duplicated work. The plaintiffs made clear that they did not intend the defendant or group members to bear the costs of the costs referee.

71 Treasury agreed that if joint representation were allowed, a costs referee should be appointed. The plaintiffs submitted that the costs' referees' reports should be submitted, confidentially, to the Court and to the plaintiff. Treasury said that it too, should receive the costs' consultants' reports. In response to a submission that the disclosure of the reports may reveal information about the conduct of the litigation by the plaintiffs that the defendant would not otherwise see and had no reason to see,[52] Treasury said that it would be content to see redacted reports revealing only the quantum of the costs associated with any duplicated work.

72 In my view where an order for joint representation is permitted, the appointment of an independent costs consultant is sensible. The purpose of the performance of assessments by an independent consultant during the course of the litigation, is to detect and record the existence of any duplicated work as it occurs, rather than deferring that exercise until the end of the proceeding when it may be more difficult to detect. Although created during the life of the proceeding, reports of the opinion of the costs referee would constitute a resource to which the Court might have regard when considering costs at the conclusion of the litigation.

73 For the reasons discussed above it is my view that the proposal for consolidation and joint representation (with the adjustments discussed) will advance the interests of group members in that it will ensure that they have experienced, well-resourced representation that will operate within a regime that will facilitate a high degree of co-operation and the efficient conduct of the litigation. That of course is not the only relevant consideration. One must then ask how that arrangement compares with alternatives.

74 The proposed arrangements will not be detrimental to the interests of group members, compared with the positon that they would be without an order permitting joint representation. The cost of this arrangement to group members - additional work needed to implement a joint team of solicitors with the attendant costs - is not visited on group members where the orders permitting joint representation preclude that outcome.

75 The interests of group members in having the conduct issue resolved now, and the question of group member choice, are considered below.

76 The proposed Protocol and orders, if made in the form discussed, would not adversely affect the interests of the defendant, either in relation to the conduct of the litigation or in relation to costs.

The alternatives to consolidation with joint representation

77 How does the proposed resolution of the multiplicity issue compare with the alternatives?

78 Treasury submitted that the only issue remaining was which law firm should act in a consolidated proceeding. That question, Treasury said, could be decided readily, on the papers. Treasury also maintained that the position of the plaintiffs and their solicitors in seeking joint representation was proffered in terrorem, suggesting that the position was less than genuine.

79 Treasury's submission about the path forward over-simplifies the issues in play.

80 On this application the plaintiffs' joint proposal was proffered on the basis that the solution to the multiplicity problem is ultimately a matter for the Court, and in the event the joint proposal is not acceptable, the alternatives to be considered will include allowing either the Napier or Stallard proceedings to proceed (staying one of them) or consolidating them and selecting one firm to act in the consolidated proceeding. The competing options were identified in Treasury's initial proposed orders which set out cascading alternatives. Further evidence would need to be prepared and considered on that issue.

81 On the material before me I do not accept that the plaintiffs' position in which they have consented only to a package of measures, is less than genuine. It is apparent that the plaintiffs and their lawyers have sought to narrow the issues in dispute and have presented a proposal that reflects the limit of their ability to reach a compromise, at least on the present state of affairs. That they have done so reflects at least, their acceptance of their overarching obligations.

82 On the question of consolidation, while it is true that proceedings do not require the navigation of contracts with third party funders, the course adopted in Pallas Holdings demonstrates that an order for consolidation without joint representation or some other consent regime, will require arrangements between parties involved in each proceeding to facilitate their practical merger into one proceeding, being left to the parties. That course lacks transparency.

83 I do not consider that the matters likely to emerge on a "carriage motion" (whether or not it involves the question of a stay) can be dispensed with in a cursory way, as Treasury submitted. Analysis of the cases in which these matters have been decided, save for the decision in Pallas, suggests otherwise. Any choice between law firms in this case would engage the principles discussed in the cases including most recently in Wigmans, although it would likely need to be made in the context of applications for a Group Costs Order, raising new issues.

84 I consider that the continuation of a disputed carriage motion, which has now come to me for resolution consequent upon agreement between the plaintiffs part way through what could be a much more lengthy process, would likely entail considerable cost and the expenditure of the resources of the Court and the parties.

85 I do not consider that in this case, "group member choice" it is a factor that points substantively in favour of joint representation (for reasons discussed below) or against it (for the reasons discussed above at paragraphs 44 to 47).

86 The evidence was that Maurice Blackburn was retained by 69 institutional investors (representing 350 shareholdings) and by 109 retail investors. An additional 11 retail investors (representing 52 shareholdings) and 34 retail investors had registered their interest in participating in the Napier proceeding. Slater & Gordon was retained by 11 institutional investors (representing 111 shareholdings) and 74 retail investors. A further 24 institutional investors (representing 665 shareholdings) and 62 retail investors registered their interest in participating in the Stallard proceeding. The clients who had signed retainers with both firms had retained over 15 million shares (in combination) during the period. There was no information by reference to which the significance of those numbers could be assessed. Mr Chuk said that in an unfunded open class action the execution of retainers was not necessary for a group member to support and participate in an action.

87 The plaintiffs said (in submissions filed with the evidence of the retainers) that the evidence revealed that a significant number of group members had indicated a choice of legal representative and, as one relevant consideration, the court ought to strive to uphold group member choice and contractual relationships.

88 As Treasury rightly submitted, in the context of competing representative proceedings, the commitment of group members to particular representation has been understood as favouring joint representation where there is evidence of informed choice by significant numbers of group members.[53]

89 Although assessments of this kind will always be relative, and it is not to be assumed that any person who has signed up with either firm has done so unthinkingly, the evidence does not support any conclusion of substance about the choice exercised by those group members. There was no information about the relative size of the "signed up" group members compared with the whole represented class, or of the basis on which they had retained one law firm or the other. There was no basis on which to conclude, for example, that the number or identity of the group members who had signed retainers was such that were they not permitted their choice of solicitor they would be expected to opt-out of the proceedings and commence another action, perpetuating the problem of multiplicity.

90 As the plaintiffs recognised when initially deciding not to file evidence about group membership (as to which, see below), in an action that does not involve third party funders, contractual choice is, less relevant than where a choice is required between funding terms.

91 It is necessary to mention briefly how this issue arose.

92 Over the objection of Treasury, the plaintiffs provided the evidence discussed above, as to the number of group members who have retained their firms. The plaintiffs had not filed any such material prior to the hearing. It was my view during the course of oral argument that that issue may be relevant, and I raised the issue with counsel. Counsel said that group members had "signed up" with each firm, and that information about the respective groups could and would be provided if it were of assistance. I made orders permitting the plaintiffs to file that evidence if they so chose, subject to Treasury's objection and its right to make submissions about the receipt of the evidence and to respond to it generally. Treasury did not object to the plaintiffs filing on that basis.

93 Subsequently, the solicitors for each of Stallard and Napier filed brief affidavits and submissions. Treasury filed submissions in opposition to my receiving the plaintiffs' material, in which Treasury said that the plaintiffs had not applied to re-open their case, and that in any event leave should be refused because the decision not to adduce evidence about group membership had been deliberate, and that allowing the plaintiffs to rely on the evidence would cause prejudice and be contrary to the overarching obligations.

94 I do not accept that the submission of the material, in those circumstances, amounted an attempted re-opening by the plaintiffs, of their "case",[54] and in any event consider that the justice of the case favours receiving the material. On this occasion I specifically raised the question relating to the retention of the plaintiffs' respective law firms by group members and did so in the course of discussion with counsel. In response to my raising the matter, counsel for the plaintiff said that information about group membership was available and could be provided. The question of further evidence arose here on an application in which I was considering the exercise of the power conferred by s 33ZF of the Supreme Court Act pursuant to which the Court may make any order it thinks appropriate or necessary to ensure that justice is done in the proceeding, including of its own motion, and in respect of which the Court has a protective role in relation to group members, as discussed earlier. In those circumstances, the Court may consider that a matter is relevant, whether or not a party has raised it, or whether or not a party considers it to be relevant.

95 Treasury said that it was prejudiced, specifically because during the time from the point at which Treasury first raised the issue until the material was filed, the plaintiffs had afforded themselves the opportunity to "book build", such that it should be inferred that by the time they filed the further evidence they had garnered a greater number of supporters than had they proffered the information at the time of Treasury's initial request. I do not consider that permitting the plaintiffs to file evidence relevant to group members was, in any relevant way, prejudicial to Treasury. Assuming the point to be relevant for the sake of analysis, it is apparent on the face of the material that there is no information about when group members were signed up, and, if it were relevant, the plaintiffs would not be entitled to the benefit of any assumption that they were signed up at any time prior to or close to the time at which the new material was submitted. Furthermore, the limitations of the evidence are apparent on its face. Treasury was afforded the opportunity to make submissions about the evidence and in doing so, drew out those limitations. Treasury has not been deprived of a forensic advantage it might have achieved by having time more time to investigate the material, to make the point it advances in submissions. Treasury did not identify any other potential forensic disadvantage or unfairness to it. That is unsurprising given the nature of the application and the substantive question in issue.

96 It is correct, as Treasury pointed out, that early in the proceeding Treasury had sought information about group membership from Slater & Gordon and Maurice Blackburn, which they did not provide. Slater & Gordon had said to Treasury that in an open class proceeding not funded by an external funder, and given the prospect of an application for a Group Costs Order, they could not see that the information was relevant. The decision not to adduce evidence of group membership was not inadvertent, and it was evidently a forensic choice, but it was consistent with the view expressed in correspondence (the view taken at that time, reasonably enough), that the issue was not truly relevant on the particular facts of the case. It is also correct (as set out above) that the plaintiffs later sought to contend the material was relevant and that it supported their application for joint representation. That submission was an over-reach, for the reasons discussed above.

97 I do not accept Treasury's submission that receiving the evidence is inimical to the objective of bringing litigation to finality. Rather, it was appropriate to receive it in order to facilitate a consideration of the real issues in dispute. In saying that I am not expressing a general view about principles relating to the receipt of evidence in applications of this kind.

(a) For the reasons discussed above, it is my view that the proposal for consolidation and joint representation will advance the interests of group members in that it will ensure that they have experienced representation that will operate within a regime that will facilitate a high degree of co-operation and the efficient conduct of the litigation;

(b) The proposed orders for consolidation and joint representation will not be detrimental to the interests of group members. The cost of the arrangement to group members - namely the additional work needed to implement a joint team of solicitors with the attendant costs - is not visited on group members where the orders permitting joint representation preclude it;

(c) Group members' interests are advanced by the saving of the time and costs that would be consumed by a contest between the plaintiffs and their respective lawyers.

99 As to Treasury's position (the issue on which Treasury squarely had an interest) Treasury rightly submitted that it should not have to bear the consequence of any additional costs of an order for joint representation. As I have concluded above, the proposed Protocol and orders, with the modifications discussed, would not adversely affect the interests of Treasury, either in relation to the conduct of the litigation or in relation to costs.

100 In the circumstances, having regard to the evidence before me, I consider that orders for consolidation with joint representation on the terms set out the orders annexed to these reasons:

(a) properly protect and promote the interests of group members in relation to the prosecution of and costs of the proposed consolidated proceeding;

(b) do not detrimentally affect the interests of the defendant;

(c) give effect to the overarching purpose, in particular by facilitating the efficient disposition of the business of the Court, the efficient use of judicial resources and the timely determination of the proceeding; and in facilitating the efficient and timely determination of the proceeding, advance the interests of group members.

Accordingly, those orders are "appropriate or necessary to ensure that justice is done in the proceeding".

101 The plaintiffs' application for consolidation of the proceedings Brett Stallard as trustee for the Stallard Superannuation Fund v Treasury Wine Estates Ltd (S ECI 2020 01590) and Steven Napier v Treasury Wine Estates Ltd (S ECI 2020 01983) is granted, as is leave for Maurice Blackburn and Slater & Gordon to be named jointly as solicitors on the record for the joint plaintiffs in the consolidated proceeding.

102 On the question of the independent costs referee, all parties accepted that the nomination of a suitable person was a matter for the Court. The parties identified Ms Catherine Dealehr and Ms Elizabeth Harris as appropriately qualified candidates. I consider that both are relevantly experienced and qualified to undertake the relevant task. In the event that both Ms Harris and Ms Dealehr remain available for appointment I will, through the parties, request that they each provide me with a short note setting out their proposed methodology and hourly rates, and confirmation that they consent to be appointed, and on receipt of that material I will make the relevant orders.

103 Given the orders I have made in relation to duplicated costs, I do not consider it necessary that the costs referee's reports be provided to Treasury on a rolling basis as they are prepared. As I have said earlier, reports of the opinion of the costs referee will constitute a resource to which the Court might have regard when considering costs at the conclusion of the litigation. The referee's task is to inquire for the purpose of identifying the existence of work that is, in the referee's opinion, duplicated. The value or quantum of that work can be assessed at a later stage if it becomes relevant, on the appropriate basis. The referee will be required to describe any duplicated work with sufficient detail to enable its quantification at a later time. The question of access to the reports can be further considered when and if the question of costs payable by the defendant is in issue. It would be expected that Treasury would seek an order for access to the reports at that time.

1. The proceeding Brett Stallard as Trustee for the Stallard Superannuation Fund (S ECI 2020 01590) (Stallard Proceeding) be consolidated with this proceeding (S ECI 2020 01983) (Napier Proceeding) and the consolidated proceeding be known as Brett Stallard as trustee for the Stallard Superannuation Fund and Stephen Napier v Treasury Wine Estates Ltd to be identified as S ECI 2020 01590 (Consolidated Proceeding).
2. The plaintiff in the Stallard Proceeding (the Stallard Plaintiff) and the plaintiff in the Napier Proceeding (the Napier Plaintiff) are to be the joint representative plaintiffs in the Consolidated Proceeding (the Plaintiffs).
3. Maurice Blackburn Pty Ltd (Maurice Blackburn) and Slater and Gordon Limited (Slater & Gordon) (together, the Lawyers) are granted leave to be jointly named as solicitors on the record for the Plaintiffs in the Consolidated Proceeding.
4. Order 3 is subject to the provision of:

(a) an undertaking by each of the Stallard Plaintiff and Napier Plaintiff in the form that appears below; and

(b) an undertaking by each of Slater & Gordon and Maurice Blackburn in the form that appears below.

1. Subject to order 9 below, costs incurred in the Napier Proceeding and in the Stallard Proceeding will be costs in the Consolidated Proceeding.
2. The costs of any work performed in the Consolidated Proceeding on and after the date of these orders that is performed by reason of there being two firms jointly representing the plaintiffs rather than one firm (Duplicated Work):

(a) not be recoverable against group members in the Consolidated Proceeding;

(b) not be recoverable against the Defendant in the Consolidated Proceeding.

1. [ ], a Legal Costs Consultant, is appointed as an independent costs referee (Costs Referee), for the purpose of:

(a) conducting inquiries every six months, commencing from the date of these Orders, as to whether in her opinion there is any and if so what Duplicated Work being performed by the Lawyers in the Consolidated Proceeding;

(b) preparing a confidential written report in respect of each six monthly inquiry that sets out the Cost Referee's opinion as to the matters in sub-paragraph (a) and describes any duplicated work with sufficient detail to enable its quantification at a later time (Six Monthly Report).

1. The Costs Referee shall provide to the Plaintiffs a copy of each Six Monthly Report, within 7 days of the report being completed, and shall provide to the Court, a copy of each and any Six Monthly Report, in response to any further direction by the Court to do so.
2. The costs of the Costs Referee shall be borne equally by the Plaintiffs in the Consolidated Proceeding and shall not be recoverable against the Defendant or against Group Members in the Consolidated Proceeding.

1. By 30 October 2020 the Plaintiffs are to file and serve a consolidated statement of claim.
2. By 20 November 2020 the defendant is to file and serve a defence to the Consolidated statement of claim.
3. The matter be listed for further directions on [ ].

[Brett Stallard / Steven Napier] undertakes to the Court to enter into the Cooperative Litigation Protocol annexed to the orders of the Court dated [date], and undertakes to instruct his solicitors [Slater & Gordon / Maurice Blackburn] to comply with the Cooperative Litigation Protocol in conducting the consolidated proceeding.

UNDERTAKING - SOLICITORS ON THE RECORD FOR THE PLAINTIFFS

[Slater and Gordon Limited / Maurice Blackburn Pty Ltd] undertakes to the Court to conduct the consolidated proceeding in accordance with the Cooperative Litigation Protocol annexed to the orders of the Court dated [date].

[1] Obligations imposed by s 674(2) of the Corporations Act 2001 (Cth).

[2] See for example, Wigmans v AMP Ltd [2019] NSWCA 243; (2019) 373 ALR 323 (Wigmans), Wileypark Pty Ltd v AMP Ltd [2018] FCAFC 143; (2018) 265 FCR 1 (Wileypark) at 4 [2] (Allsop CJ).

[4] See Supreme Court Act s 33C.

[5] See Perera v GetSwift Ltd [2018] FCAFC 202; (2018) 263 FCR 92 (Getswift) at 137 [196] (Middleton, Murphy and Beach JJ).

[6] BMW Australia Ltd v Brewster [2019] HCA 45; (2019) 374 ALR 627 (Brewster) at 638 [45] and 640 [54] (citing Johnstone v HIH Ltd [2004] FCA 190).

[7] Wigmans at 345 [103]-[104] (Meagher and Payne JJ); Wileypark at 7-8 [14]-[15].

[8] See for example, Kirby v Centro Properties Ltd [2008] FCA 1505; (2008) 253 ALR 65 (Kirby v Centro) at 68-9 [9]-[12], 72 [28] (Finkelstein J), Wileypark at 7-8 [14]-[18].

[9] Getswift at 123-5 [137]-[141]; UBS AG v Tyne [2018] HCA 45; (2018) 265 CLR 77 at 93-4 [38] (Kiefel CJ, Bell, Keane JJ); 104-5 [70]-[72] (Gageler J).

[10] Civil Procedure Act 2010 (Vic), ss 7-9. See, in a different context, Yara Australia Pty ltd v Oswal [2013] VSCA 337; (2013) 41 VR 302 at 311 [25] (Redlich and Priest JJA, Macaulay AJA).

[14] Wigmans; Wigmans v AMP Limited [2020] HCA Trans 052 (Wigmans High Court Special Leave Transcript).

[15] Wigmans High Court Special Leave Transcript, 2-3; 7-8; 13-4; Wigmans, 'Appellant's Submissions', Submissions in Wigmans v AMP Ltd, HCA file number S67/2020, 5 June 2020.

[17] Getswift at 137 [196]; Wigmans at 340 [72].

[18] See for example GetSwift at 126 [148].

[20] See Getswift at 106-8 [48]-[59]; Southernwood v Brambles Ltd (2019) 137 ACSR 540 (Southernwood) at 544 [13] and the authorities summarised at Southernwood at 549**-59 [40]-[42]; Zonia Holdings Pty Ltd v Commonwealth Bank of Australia Limited (No 2) [2019] FCA 1061 (Zonia**); Pallas v Lendlease Corporation Ltd [2019] NSWSC 1631, [8].

[21] Lewis v Daily Telegraph Ltd (No 2) [1964] 2 QB 601 (Lewis).

[22] [1853] EngR 529; (1853) 17 Beav 158 (Wedderburn); see Lewis at 619.

[23] In Wedderburn there were five co-plaintiffs. A decree had been made for the taking of accounts but they had not been completed. One of the plaintiffs (Mr Hawkins) moved that in consequence of the plaintiffs' solicitors not proceeding with the case, Mr Hawkins may be at liberty to bring the matter before the Master for the taking of accounts. The Master of the Rolls determined that Mr Hawkins may, with the other plaintiffs, remove their solicitor and the other plaintiffs may allow Mr Hawkins to conduct the proceeding for all of them, but if all of the plaintiffs did not concur, Mr Hawkins could not "take a course of proceeding different and apart from the other plaintiffs, for the consequence would be, that their proceedings might be totally inconsistent." The Master said that he could not "allow one of several plaintiffs to act separately from and inconsistently with the others".

[25] Goold & Porter Proprietary Limited & Ors v Housing Commission [1974] VicRp 14; [1974] VR 102 (Norris J); more recently cited in Maisano v Bodycorp Repairers [2015] VSC 365, [7] (Elliott J).

[26] McKay Super Solutions v Bellamy's Australia (No 2) [2019] FCA 215; (2019) 135 ACSR 278 (Bellamy's), [37]-[38]; [46]-[48] (Beach J).

[27] Section 33ZF of the Federal Court Act and s 33ZF of the Supreme Court Act (Vic) which are in materially identical form.

[28] Southernwood at 553-4 [55]-[58].

[29] Southernwood at 553 [55]; see Johnson Tiles Pty Ltd v Esso Australia Ltd (1999) 56 ATPR 41- 679; (1999) FCA 56; Gaby Hadchiti and Others v Nufarm Limited (NSD 1847/2010) (Nufarm Class Action); Stanford v DePuy International Ltd (NSD213/2011) (DePuy Hips Class Action); Cheryl Whittenbury v Vocation Ltd (in liq) (VID434/2015) (Vocation Class Action); Kuterba v Sirtex Medical Ltd [2018] FCA 1467; Kirby v Centro; Carnie v Esanda Finance Corporation Ltd (1996) 38 NSWLR 465.

[32] Southernwood at 554-6 [59]-[64].

[34] Southernwood at 542-3 [9], 544 [14], 556 [65].

[35] Pallas v Lendlease Corporation Limited [2019] NSWSC 1631 (Hammerschlag J) (Pallas).

[39] [2019] HCA 45; (2019) 374 ALR 627 (Brewster).

[40] See for example, Kirby v Centro at 68-9 [9]-[12], 72 [28], Wileypark at 7-8 [14]-[18], Wigmans at 345 [103]-[104].

[41] [2019] NSWCA 35; (2019) 366 ALR 171.

[42] [2019] FCAFC 34; (2019) 265 FCR 21 (Westpac v Lenthall).

[43] Westpac v Lenthall at 45 [90].

[45] See for example Getswift at 130 [166]-[167].

[46] See Getswift at 95-6 [2], 105 [44], 106-7 [46]-[51], 120-2 [119]-[127], 124-5 [141]-[143], 129-30 [162]-[165], 133 [178]-[179], 134-5 [183]-[186], 145 [241]-[243], 151-3 [274]-[279]; Klemweb Nominees Pty Ltd v BHP Group Ltd [2019] FCAFC 107; (2019) 369 ALR 583 at 586 [6]-[7], [10], 587 [13], [14], 590 [34], 593 [48], 615 [151], 615-7 [155]-[160]; Southernwood at 542-3 [7], [9], 544 [13], [14], 552-5 [51]-[60].

[47] See Wileypark at 7-8 [14]-[15].

[48] In this respect (among others) the form of orders and protocol ultimately proposed differs from the orders made in Southernwood.

[49] Affidavit of Julian Schimmel (19 June 2020), [22]; Affidavit of Mathew Chuk (18 June 2020), [62]; Affidavit of Mathew Chuk (27 August 2020), [13]: Holly Southernwood v Brambles Limited (VID972/2018) in the Federal Court of Australia (Brambles Class Action); Dale Robert Alford v AMP Superannuation Limited (VID572/2019) (AMP Superannuation Class Action); Vocation Class Action; Basil v Bellamy's Australia Ltd (VID213/2017) and McKay Super Solutions Pty Ltd (Trustee) v Bellamy's Australia Ltd (VID163/2017) (together Bellamy's Class Actions); Nufarm Class Action; Richard Kirby v Centro Properties Limited (VID326/2008), Richard Kirby v Centro Retail Ltd (VID 327/2008); Nicholas Stott v PricewaterhouseCoopers Securities Ltd (VID1041/2008); Nicholas Vlachos v Centro Properties Ltd and Others (VID366/2008); Nicholas Vlachos v PricewaterhouseCoopers (VID1041/2010) (together the Centro Class Actions); Fernbrook (Aust) Investments Pty Ltd v AMP Ltd (VID670/2018) (AMP Shareholder Class Action).

[50] Affidavit of Mathew Chuk (19 June 2002), [62]: Centro Class Action, Bellamy's Class Actions and Nufarm Class Action.

[51] Affidavit of Julian Schimmel (19 June 2020), [22]: Vince lmpiombato and Klemweb Nominees Pty Ltd v BHP Group Ltd (VID649/2018) (BHP Class Action); Zonia Holdings Pty Ltd v Commonwealth Bank of Australia Limited (VID1085/2017) and Baron v Commonwealth Bank of Australia Limited (NSD1158/2018) (together the CBA Class Actions); David William Pallas & Julie Ann Pallas as trustees for the Pallas Superannuation Fund v Lendlease Corporation Limited (2019/00122037) in the Supreme Court of New South Wales (Lendlease Class Action); DePuy Hips Class Action.

[53] See Getswift at 133 [178]-[179].

[54] See the principles discussed in Ezra Abrahams Pty Ltd v Milburn [2017] VSCA 355.