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Cited legislation

13 cited instruments linked from this judgment.

Ms Wigmans' submissions

1. In this Court, Ms Wigmans' central complaint was that the Court of Appeal erred in failing to apply a rule or presumption that it is prima facie vexatious and oppressive to commence an action if an action is already pending in respect of the same controversy. She submitted that the onus is on the party that commences the action second in time to show that its action is not vexatious and oppressive, and that to discharge the onus the second‑in‑time party must point to some legitimate juridical advantage that its proceeding offers over and above the first proceeding. And she argued that Komlotex had not discharged that onus.
2. Ms Wigmans identified several separate lines of authority that she submitted supported, or at least were not inconsistent with, the alleged first-in-time rule or presumption - common law principles arising from McHenry v Lewis[61]; the inherent power to grant a stay; abuse of process principles from Henry v Henry[62] and Moore v Inglis[63]; and equitable principles concerning test actions.
3. Ms Wigmans contended that the "multifactorial approach" adopted by the primary judge improperly departed from the first‑in‑time rule or presumption and improperly imported a "carriage" or "certification" procedure from the United States and Canada that Pt 10 of the CPA does not authorise.
4. Ms Wigmans further submitted that the primary judge erred in acting upon the assumption that the proceedings brought by each of Ms Wigmans and Komlotex against AMP had an equal probability of achieving a possible settlement or judgment outcome within the range of possible outcomes.

Power to grant a stay

1. The source of the Supreme Court's power to grant a stay is found in s 67 in Pt 6 of the CPA. It is a power to "at any time and from time to time, by order, stay any proceedings before it, either permanently or until a specified day"[64]. It encompasses, and overlaps with, the Supreme Court's inherent power to stay a proceeding to prevent abuse of its processes[65], which extends to staying proceedings that are frivolous, vexatious or oppressive[66].
2. The scope of the power is to be determined by considering the text of s 67 in its context. Section 67 confers a broad power on the Supreme Court to stay proceedings; it is a means by which that Court can regulate its processes and manage cases before it in accordance with the principles set out in Pt 6 of the CPA.
3. Section 67 does not provide for any particular criteria relevant to the exercise of the power[67]. But the power is not unconstrained. Some considerations are mandated by other provisions in Pt 6 of the CPA. Section 58(1) provides that in making any order or direction for the management of proceedings (including the grant of a stay), the court must seek to act in accordance with the dictates of justice. Section 58(2) provides that, in doing so, the court must have regard to s 56 (the overriding purpose of the CPA and the rules of court, being to facilitate the just, quick and cheap resolution of the real issues in the proceedings) and to s 57 (the objects of case management, including the just determination of the proceedings and the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties). Part 6 of the CPA also provides that for the purpose of determining the dictates of justice in a particular case, the court may have regard, among other things, to the complexity of the issues[68], the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction[69] and "such other matters as the court considers relevant in the circumstances of the case"[70].
4. There is, however, nothing in s 67, read with Pt 6, that supports Ms Wigmans' contention that the considerations to which a court might have regard in exercising the power in s 67 are to be confined, or that the statutorily identified considerations (both mandatory and discretionary) applying to the exercise of the power are to be displaced, by reference to a first‑in‑time rule or presumption[71]. The provisions of Pt 6 do not disclose any legislative intent that the court must give predominant (or indeed any) weight to the order in which competing proceedings were filed.
5. The conclusion that there is no first‑in‑time rule or presumption is reinforced by the scheme of Pt 10[72]. There is nothing in Pt 10 that expressly cuts down or is inconsistent with the broad power of stay under s 67 and, in particular, there is no provision in Pt 10 that expressly or impliedly prevents the filing of a second representative proceeding against a defendant in relation to a controversy. To the contrary, where seven or more persons have claims against the same person[73], and the conditions in s 157(1)(b) and (c) are met[74], s 157 permits "one or more" of those persons to commence proceedings representing some or all of them. Under that statutory scheme[75]:

"[t]he representative proceeding may represent some or all of those who have such a claim. The claims of the applicant and the group members must give rise to a substantial common issue of law or fact, but the group members need not necessarily share a common interest. Indeed, the claims need not be based on the same conduct." (emphasis added)

1. Moreover, Pt 10 forms part of the CPA and, like any other Act, the CPA must be read as a harmonious whole[76]. The introduction of Pt 10 into the CPA in 2010 did not remove or dilute the Supreme Court's existing powers, but provided a more detailed regime[77] compared with the pre‑existing rules of civil procedure[78] that provided for representative proceedings[79]. Contrary to Ms Wigmans' submission, recognition that there may be multiple representative proceedings which overlap in various ways is not inconsistent with one objective of Pt 10 being "to increase the efficiency of the administration of justice by allowing a common binding decision to be made in one proceeding rather than multiple suits"[80]. That objective poses the question of how to resolve multiplicity when it arises. It does not answer it.
2. Nor does anything in Pt 10 evince an intention that a party to a representative proceeding (including a representative plaintiff) or a group member must use and only use the provisions of Pt 10 if dissatisfied with the conduct of an existing representative proceeding. Provisions in Pt 10, such as ss 171 and 162, do not detract from the Supreme Court's power to stay competing representative proceedings or impose any limitation of the kind contended for by Ms Wigmans.
3. Section 171 permits a group member to apply to replace a representative plaintiff where the existing plaintiff is "not able adequately to represent the interests of the group members". It is not concerned with, and does not address, a circumstance where competing representative plaintiffs believe they are able to more adequately represent the interests of all or some group members.
4. Section 162 provides that a group member may opt out of representative proceedings[81] and that, except with leave, the hearing of representative proceedings must not commence earlier than the date before which a group member may opt out of the proceedings[82]. The right to opt out preserves to the group member the ability to individually pursue proceedings outside the representative proceeding regime in Pt 10, to choose between representative proceedings or, for whatever reason, not to seek relief under Pt 10 or otherwise.
5. Part 10 also identifies other considerations which may be relevant in dealing with competing representative proceedings. Section 162, which has been addressed, provides one of them. Whether the date before which a group member may opt out of the proceeding has passed may be relevant. Section 166 provides another example. It stipulates that the Supreme Court may, on application by a defendant, or of its own motion, order that proceedings no longer continue under Pt 10 if satisfied that it is in the interests of justice to do so for one of a number of reasons. Those reasons include that: the costs that would be incurred if the proceedings were to continue as representative proceedings are likely to exceed the costs that would be incurred if each group member conducted a separate proceeding[83]; the representative proceedings will not provide an efficient and effective means of dealing with the claims of group members[84]; a representative party is not able to adequately represent the interests of the group members[85]; and it is otherwise inappropriate that the claims be pursued by means of representative proceedings[86]. In relation to the last of those matters, s 166(2) provides that it is not inappropriate for claims to be pursued by means of representative proceedings merely because the persons identified as group members in relation to the proceedings do not include all persons on whose behalf those proceedings might have been brought[87] or are aggregated together for a particular purpose such as a litigation funding arrangement[88].
6. Section 166 also thereby recognises important aspects of Pt 10: that in relation to representative proceedings there are group members who are not parties to the proceeding until after the opt‑out process; that litigation funding arrangements are accommodated within the regime; and, consistent with principle, that in the exercise of its powers under the CPA, the Supreme Court must be mindful not only of the existence of group members but of what is in their best interests[89]. That is particularly the case where those interests may be prejudiced or, as Komlotex and Fernbrook submitted, "where there is a real risk - as [here] - that those interests may diverge from the interests of the representative party"[90].
7. Although strictly unnecessary to support the power to grant a stay, the general power of the Supreme Court under s 183 to make any order that it thinks "appropriate or necessary to ensure that justice is done in the proceedings" also shows that the overall concern of Pt 10 is the "just and effective resolution" of the issues in the proceeding[91]. In the context of competing representative proceedings, the grant of a stay may be necessary or desirable to achieve the just and effective resolution of the issues.
8. Unlike the United States and some Canadian provinces, which have adopted certification and carriage motion procedures to resolve multiplicity in class actions[92], Australian legislatures deliberately chose not to adopt such procedures[93]. That choice reflected a view that the proposed class actions scheme was adequate to protect group members' interests[94] or, perhaps, competing class actions were not envisaged[95].
9. But the decision not to adopt the United States or Canadian procedures in Australia does not end, or dictate the outcome of, the process of identifying the relevant considerations for the Supreme Court in deciding which of the competing representative proceedings is to proceed. For as has been explained, the representative proceedings scheme in Pt 10 does not stand alone. It forms part of the CPA and it operates in conjunction with the CPA and the Supreme Court's inherent powers.
10. A first‑in‑time approach of the kind for which Ms Wigmans contended would also be unworkable. To adopt and adapt what Lord Templeman said in The Abidin Daver[96], a concern with avoiding or limiting a multiplicity of representative proceedings ought not be replaced by a presumption - a first-in-time criterion - that leads to an "ugly rush" to the court door, including but not limited to the framing of causes of action and claims for relief as broadly as possible to gain so‑called "juridical advantages". And as the facts of this appeal demonstrate, multiple representative proceedings in respect of the same controversy are not necessarily "duplicitous". Here, there was overlap between the representative proceedings but the overlap was not complete. And, no less significantly, Ms Wigmans failed below to establish that the commencement of any of the later filed proceedings was an abuse of process, a finding from which she did not seek leave to appeal.

Authorities on which Ms Wigmans relied

1. It remains to address the several lines of authority on which Ms Wigmans relied in support of her contention that there is a rule or presumption that the representative proceeding issued first in time is to be preferred and that, absent some other juridical advantage, any later proceedings should be stayed. As presented, there were five steps to the argument:

(1) at common law, it is, prima facie, vexatious and oppressive to commence an action if an action is already pending in respect of the same controversy and in which action complete relief is available, citing Carron Iron Co v Maclaren[97], CSR Ltd v Cigna Insurance Australia Ltd[98] and Henry[99];

(2) the relevant authorities are those relating to "duplicative" proceedings; authorities relating to proceedings which are "merely overlapping", such as McHenry[100], are not applicable;

(3) the onus is on the party commencing the second action to show that it is not vexatious and oppressive, citing Moore[101];

(4) the onus is typically discharged by establishing that the second action offers some legitimate juridical advantage over the first action, citing Voth v Manildra Flour Mills Pty Ltd[102]; and

(5) the fact that the parties to the second action are not identical to the parties to the first does not displace the presumption, citing Moore[103] and Perera v GetSwift Ltd[104].

1. Two points may be made at the outset. Ms Wigmans' argument is impermissibly selective and at various points merges different ideas from areas with different jurisprudential foundations. And, as will be seen, the authorities cited do not support a first‑in‑time rule or presumption.

Common law principles

1. Ms Wigmans' argument assumed that there is a common law principle that, if complete relief is available in a proceeding on foot, it is prima facie vexatious and oppressive to commence a second proceeding dealing with the same controversy. That proposition was rightly rejected by both the primary judge and the Court of Appeal.
2. By no later than 1589, the general "rule of law" was that "a man shall not be twice vexed for one and the same cause"[105]. Thus, at common law, an award of damages was said to be once‑and‑for‑all[106] and even the pendency of an action for certain relief was a good plea in abatement to another action for the same relief in a court of concurrent jurisdiction[107]. By contrast, as Lord Hardwicke LC remarked in Foster v Vassall[108], although courts of equity adopted the same "general rule" at an early point, they applied it "with a more liberal discretion".
3. Prior to the Judicature Acts, a plaintiff who brought an action at law and a suit in equity for like remedies was ordinarily put to their election. But the earlier proceedings did not bar the later[109]. This principle of election was then extended to cases where proceedings were pending in the English Court of Chancery and a foreign court[110], subject to recognition that differences of procedure and remedy, and the location of assets, might justify concurrent proceedings[111]. After a decree was made in the English proceedings, however - even one requiring further steps, such as an inquiry or accounting - the plaintiff was taken to have "already made his election"[112], and hence the defendant's only remedy was an injunction against the foreign proceedings. As Lord Cranworth LC observed in Carron Iron[113], "[w]here ... pending a litigation here, in which complete relief may be had, a party to the suit institutes proceedings abroad, the Court of Chancery in general considers that act as a vexatious harassing of the opposite party, and restrains the foreign proceedings".
4. Within a decade of the Judicature Acts, these equitable principles were adapted by courts jointly administering law and equity. In the seminal case of McHenry, the Master of the Rolls, Sir George Jessel, cited[114] the practice of the old Court of Chancery, of putting a plaintiff to their election by an order of course if they were suing for the same cause of action both at law and in equity, in support of the principle that, within England, "where the two actions are by the same man in Courts governed by the same procedure, and where the judgments are followed by the same remedies, it is primâ facie vexatious to bring two actions where one will do". His Lordship concluded[115] that the court had power to prevent improper vexation by concurrent local and foreign proceedings and that no "inference" of "primâ facie vexation" could be drawn from the multiplicity of proceedings where "[n]ot only is the procedure different, but the remedy is different" as between the courts.
5. Shortly thereafter, in The Christiansborg, the Court of Appeal reiterated[116] the principles in McHenry but divided as to the proper remedy: whereas Lord Esher MR in dissent would have put the plaintiff to election and relied[117] on the absence of any "case in which the Court has stayed the second action without giving the plaintiff at least the right of election", Baggallay LJ concluded[118] that "the circumstances of the case may be such that instead of putting the plaintiff to his election the Court will stay one of the two actions". The latter view ultimately prevailed and, thereafter, the proper remedy was regarded as a matter within the court's discretion[119].
6. The principles stated in McHenry have previously been accepted in this Court[120]. The general law principles concerning multiple suits do not support the first‑in‑time rule or presumption. Multiple suits were and remain to be resolved by the exercise of discretion informed by all the relevant circumstances.

Inherent power to grant a stay on grounds of forum non conveniens

1. Ms Wigmans also sought to rely on cases concerning a court's power to stay proceedings on grounds of forum non conveniens. In CSR, six judges of this Court explained the nature of the power to stay proceedings on grounds of forum non conveniens[121]:

"It is clear from the rationale for the exercise of the power to stay proceedings and, also, from the words 'oppressive', 'vexatious' and 'abuse of process' in Voth, in Oceanic Sun [Line Special Shipping Co Inc v Fay[122]] and in the earlier cases considered in Oceanic Sun ... that the power to stay proceedings on grounds of forum non conveniens is an aspect of the inherent or implied power which, in the absence of some statutory provision to the same effect, every court must have to prevent its own processes being used to bring about injustice".

1. In Oceanic Sun, Deane J explained that test in the following terms[123]:

"[The] power [to dismiss or stay proceedings within jurisdiction on inappropriate forum grounds] is a discretionary one in the sense that its exercise involves a subjective balancing process in which the relevant factors will vary and in which both the question of the comparative weight to be given to particular factors in the circumstances of a particular case and the decision whether the power should be exercised are matters for individual judgment and, to a significant extent, matters of impression. The power should only be exercised in a clear case and the onus lies upon the defendant to satisfy the local court in which the particular proceedings have been instituted that it is so inappropriate a forum for their determination that their continuation would be oppressive and vexatious to him." (emphasis added)

1. Contrary to Ms Wigmans' contention, those statements of principle do not suggest there is a first-in-time rule or presumption in the forum non conveniens context. Deane J's approach in Oceanic Sun was adopted in Voth[124] and applied in Henry[125] and CSR[126].

Reliance on Henry and Moore

1. Ms Wigmans emphasised the statement of four members of this Court in Henry that: "[i]t is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue"[127] (emphasis added). The authority cited for the proposition applying to two proceedings in the same country was Moore. But Moore, like Henry, concerned whether a second or subsequent action may be considered vexatious or oppressive in what their Honours in Henry referred to as the "strict sense"[128], of an abuse of process. The considerations involved in resolving a competition between representative proceedings are not so confined. Here, there was no abuse of process: the primary judge's finding that the consolidated Komlotex proceedings were not an abuse of process was upheld on appeal. And, even in the context of abuse of process, the time of filing is not determinative but one of a range of factors, personal to the parties, that are considered by a court[129].

Equity's approach to test actions

1. By contrast to the principles applicable to forum non conveniens cases, equitable principles concerning test actions do assist in identifying how a court should approach the issue of multiple representative proceedings. Those principles date back at least to Amos v Chadwick[130], where Jessel MR explained the court's approach to resolving 78 actions brought by shareholders of the Blochairn Iron Company against the company's promoters for fraudulent misrepresentation in these terms:

"All the actions raise substantially the same question. Of course it would have been a scandal to the administration of justice if all the seventy-eight actions had been allowed to proceed, and in some way or other provision ought to have been made for the trial of the real question between the parties in a single action, if that was possible. Sometimes such a course is not possible, because people will not be reasonable and will not consent. In that case, I take it, the Court could stay the proceedings in all the actions but one, and see what becomes of that one."

1. The procedure anticipated by the Master of the Rolls was later applied in Bennett v Lord Bury by Field J, staying 37 of 38 shareholder actions against directors of the Colonial Trusts Corporation Limited[131]. In upholding that order on appeal, Lord Coleridge CJ observed[132] that "the gist of the charge [was] the same in all" of the actions. Lindley J agreed with Lord Coleridge CJ and said[133] that:

"the order prevents the defendants from being subjected to the unnecessary burden of the costs of thirty-eight actions, when the whole matter in controversy may be settled in one. As to our power to do what is done by this order, if authority were needed, Amos v Chadwick supplies it. I must confess I should have thought without that case that there was abundant power to make such an order. It comes therefore to a question of discretion; and I think my Brother Field has properly exercised his discretion in what he has done."

1. This approach was then explained by Jessel MR in McHenry[134], in a passage in part quoted by Bell P in the Court of Appeal in this matter:

"You might have a hundred actions brought upon the same act or alleged breach of trust, and therefore of course the Court has power to stop all but one of the actions if they are all for exactly the same thing. But the course of the Court is well settled. The defendants take out a summons to stay the actions which have been previously transferred of course to the same Judge or Court, and then the Court decides which of the actions is to go on as a test action, and which are to be stayed. You cannot tell until you have all the plaintiffs before you the right course to be taken. The first action may be a collusive action, one action may embrace further relief than another, one action may be better framed than another to raise the questions in dispute, one action may be more perfect as to parties than another, in one action the plaintiff may be a solvent person, and able to answer costs, and in the other the plaintiff may be a pauper. Various considerations may arise, and until you get the whole of the actions before the Court the Court cannot decide which is to be allowed to proceed, or on what terms. It sometimes happens that we allow one action to proceed for one purpose and another for another purpose - that is that we excise from one action so much of the relief as can properly be attributed to an earlier plaintiff, and allow the second or third action to go on for the additional relief; but all that can only be discussed in the presence of all parties." (emphasis added)

Unlike the position in McHenry[135], the applications for stay in this matter were not filed by the defendant, AMP - they were filed by the representative plaintiffs. But the principles in McHenry are instructive; they reflect the approach earlier taken in Amos and Bennett, which concerned applications by plaintiffs[136].

1. And Ms Wigmans' contention that these principles apply to multiple but not duplicative suits is misplaced. As has been observed, Bennett was a case where "the gist of the charge [was] the same in all" and the multiple actions were to be resolved in the court's discretion[137]. In McHenry, Jessel MR's approach was stated to apply where there are multiple actions which are "all for exactly the same thing"[138]. As these authorities demonstrate, the principles apply to proceedings that might be characterised as duplicative. No doubt one reason for this is that there can be no clear line between duplicative proceedings and those which overlap. Further, the multiple representative proceedings in issue in this appeal were not duplicative.
2. Likewise, the principle from Carron Iron provides guidance as to how a court should approach multiple representative proceedings. As will be recalled[139], in that case the Lord Chancellor stated that "[w]here ... pending a litigation here, in which complete relief may be had, a party to the suit institutes proceedings abroad, the Court of Chancery in general considers that act as a vexatious harassing of the opposite party, and restrains the foreign proceedings"[140]. This principle was understood to match the applicable law where the second proceedings were instituted in the same jurisdiction[141]. But importantly, it was subject to the qualification that it is not "the duty of the Court so to act [to restrain the second proceedings], if from any cause it appears likely to be more conducive to substantial justice that the [second] proceedings should be left to take their course"[142]. In other words, a court of equity would not restrain the second proceeding if that course would be "ill calculated to answer the ends of justice"[143] or "ill adapted to secure complete justice"[144].
3. Contrary to Ms Wigmans' submission, Carron Iron does not hold that, where proceedings are pending in which complete relief is available, any subsequent proceeding in respect of the same controversy is vexatious and should therefore be restrained or that, absent some other juridical basis, the first in time prevails. It directs attention to the need to consider what resolution of the competing proceedings will do justice.

Considerations relevant to the exercise of the power to grant a stay

1. Having thus rejected Ms Wigmans' contention that the breadth of the power to grant a stay of competing representative proceedings under the CPA is subject to a first‑in‑time rule or presumption, it remains to identify the considerations that are relevant to the exercise of the power.
2. The starting point is that multiplicity of proceedings is not to be encouraged and that competing representative proceedings run by different firms of solicitors, with different funders, may in principle be inimical to the administration of justice[145]. But, as was earlier stated, there is no "one size fits all" approach. Multiplicity may be addressed by a variety of means instead of, or in addition to, staying one or more of the proceedings[146].
3. Second, while a first‑in‑time rule or presumption has never been favoured as a means of resolving which of the competing proceedings should proceed at all, the order of filing has been and remains a relevant consideration, although less relevant in cases like this where the competing proceedings have been commenced within a short time of each other[147]. As the Full Court of the Federal Court said in GetSwift, the commencement of a subsequent bona fide set of representative proceedings prior to the court giving substantive directions in existing but overlapping representative proceedings[148]:

"does not of itself establish any vexation, oppression or an abuse of process. Such is not established for the representative applicant in each of the proceedings, for they are different. And in respect of the group members in each of the proceedings in relation to the overlap, those overlapping group members are not parties as such. They have not engaged in any conduct with respect to their rights that could sensibly be characterised as amounting to vexation, oppression or an abuse of process."

By contrast, "the greater the gap in time between commencement of the sets of representative proceedings perhaps the stronger the case for a stay of the subsequent set of proceedings, all other matters being equal"[149].

1. Third, given the breadth of the mandatory and discretionary considerations in Pt 6 of the CPA informing the power to grant a stay, the relevant point in time is not limited to the time of filing and may, and often will, extend to facts and matters arising after filing. In the case of representative proceedings, the actions (or inaction) of group members, and, more generally, the degree of expedition with which the respective parties have approached the proceeding, including the degree to which they have been timely in their interlocutory activities[150], are likely to be relevant.
2. Fourth, the factors that might be relevant cannot be exhaustively listed. They will vary from case to case[151]. In matters involving competing open class representative proceedings with several firms of solicitors and different funding models, it is necessary for the court to determine, by reference to all relevant considerations, which proceeding going ahead would be in the best interests of group members. In the present appeal, no party suggested that the second to eighth considerations identified by the primary judge were irrelevant[152].
3. Ms Wigmans' argument focussed primarily on the first consideration - the competing funding proposals, costs estimates and net hypothetical return to members. She challenged the power of the Supreme Court under s 67 to consider differing litigation funding arrangements, either alone or in conjunction with the identity of the solicitors and their relative experience, the estimated legal costs for the conduct of the respective proceedings and the likely return to group members.
4. Litigation funding arrangements are not a mandatory consideration under s 67, but they are not irrelevant. It would be inappropriate to read s 67 with Pt 10 as conferring jurisdiction or granting power subject to limitations not found in their express words[153]. Before the primary judge, litigation funding arrangements were raised directly by each representative plaintiff as a significant fact or matter. Part 10 recognises that litigation funding arrangements are a distinct feature of representative proceedings[154], and, evidently, there will be cases where the difference between litigation funding arrangements is so stark that to exclude it from consideration in determining whether to exercise the stay power would not be consistent with the court seeking to act in accordance with the dictates of justice under s 58. But that is not to say that litigation funding arrangements must always be relevant, still less determinative.
5. There is nothing foreign to the judicial process for a court to take into account likely success in proceedings or quantum of recovery. Those considerations, as well as preferences expressed by adult beneficiaries, are well established as potentially relevant matters when a court addresses whether bringing or defending litigation by trustees is proper or can be justified having regard to the best interests of those to whom fiduciary duties are owed[155]. Similar principles apply to liquidators seeking advice[156] or seeking approval to settle a proceeding or enter a funding agreement[157]. Those principles also apply to attorneys[158]. And they are centrally important when a court approves a compromise of a claim made by a person under disability[159]. Litigation funding arrangements may affect the likely success of representative proceedings commenced under Pt 10. They will directly affect the quantum of recovery. There is no reason to exclude those considerations in exercising the power under s 67 to stay one or more of representative proceedings in relation to the same controversy.

Court's approach to competing litigation funding arrangements

1. Ms Wigmans' alternative argument was that if competing litigation funding arrangements was a relevant factor, either alone or in conjunction with other considerations (the identity of the solicitors and their relative experience, the estimated legal costs for the conduct of the respective proceedings and the likely return to group members), the primary judge erred in her consideration of those factors by acting upon certain assumptions.
2. As has been seen[160], the primary judge did approach the issue by making assumptions. She assumed that the solicitors engaged were of equal experience and ability; that each of them would take the same number of hours of work to reach settlement or judgment; at least implicitly, that each of them had the same chance of achieving each given settlement or judgment sum; that the litigation funders were similarly equal; and that each funding model provided incentives and disincentives to achieving the best outcome for group members.
3. But, as noted earlier, Ms Wigmans had submitted before the primary judge that there was no basis for distinguishing between the competence or experience of the legal teams retained in each matter, and that the experience of the legal teams and funders and the availability of resources was a neutral factor. As Meagher and Payne JJA rightly said in the Court of Appeal, the primary judge was then entitled to test the likelihood of achieving particular results by applying the common assumptions to each case. Ms Wigmans' case having been conducted in the way it was, her submission that the primary judge should not have made the assumptions her Honour did should be rejected.
4. The task undertaken by the primary judge was not a judgment regarding a matter of "mere" case management[161] but a larger task of ensuring that justice is done in the competing representative proceedings which have been commenced under Pt 10 of the CPA where all courts must be astute to protect the best interests of group members[162].
5. In undertaking that task the court must recognise that the representative plaintiff in each action typically undertakes fiduciary obligations of a representative party to the members of the group[163], some of which obligations arise from contractual obligations which directly or indirectly give a significant measure of control over the action to the person funding the litigation, be it a litigation funder or firm of solicitors. Here, there is nothing in the record to suggest that any of the representative plaintiffs even raised the possibility of, let alone addressed, the recognised conflicts of interest between the group members and the competing litigation funders or the representative plaintiff and a given litigation funder[164]. Thus, a court must be mindful of the existence of such conflicts of interest and bring them to account in assessing what is in the best interests of group members.
6. As explained, Ms Wigmans' case having been conducted in the way it was, there was no error in the primary judge's approach. However, that is not to say that the primary judge's approach was the only manner in which a court, faced with competing open class representative proceedings with several firms of solicitors and different funding models, might determine which proceeding going ahead would be in the best interests of group members. Is the court to act as inquisitor and as such investigate itself how choosing to stay one or more of the actions might affect group members, or should it use existing procedures, methods, steps and mechanisms to identify and resolve such issues on an adversarial basis? The answer to that question will invariably depend on the nature of the case in hand. But where there are complex and interrelated considerations and real potential for conflicts of interest, an adversarial approach is to be preferred.
7. A possible approach, not explored in argument on appeal, could be for the court to appoint a special referee to inquire into the litigation funding arrangements and the more particular questions the primary judge dealt with on the basis of assumptions. At any stage of the proceedings, the court may make orders for reference to a referee appointed by the court "for inquiry and report by the referee"[165], on "any question or issue arising ... whether of fact or law, or both, and whether raised by pleadings, agreement of parties or otherwise"[166]. And upon receipt of the referee's written report, the court may, among other things, "adopt, vary or reject the report in whole or in part"[167]. The use of special referees in representative proceedings is not new. They have frequently been used to ensure that group members' interests are best protected at the settlement approval stage of representative proceedings[168].
8. Alternatively, the court could require the parties making the applications to engage and fund a contradictor. That could be done by identifying and appointing a person who is a common group member of each proceeding to represent the interests of other common group members. If there were more than one candidate for the role of representative, the court would need to decide which common group member should be appointed[169]. The representative would ordinarily be appointed for the limited purpose of assisting in the determination of the stay applications and would not play a further role in the proceedings following that determination. The representative, after making necessary inquiries, could make submissions to the court recommending a particular course of action and giving the reasons for that recommendation[170]. If necessary, the representative could adduce evidence to substantiate the recommendation. The representative could engage independent solicitors and counsel with the costs of the solicitors and counsel funded by the competing firms of solicitors and funders, limited to solicitor-own client costs for work which is fair and reasonable[171]. The appointment of such a representative would be consistent with Pt 10, which has a statutory design protective of group members' interests[172].
9. In other cases, other steps might serve to meet the underlying difficulties that: the competition between funders is pursued in the name of the representative plaintiff; the interests of funders are not identical to the interests of group members; the inquiry into litigation funding arrangements is necessarily predictive; and the material before the court is chosen by the funders and the firms of solicitors they have retained[173].
10. Whatever procedure is adopted, however, notice may need to be given to affected group members under s 175(5) of the CPA, which relevantly provides for the court, "at any stage", to "order that notice of any matter be given to a group member or group members". Such notices, usually placed on relevant public websites and in newspapers[174], are not infrequently used to advise group members of a specific step, question or issue in relation to the proceedings and, on occasion, to seek group members' response. Closing the class[175] and approval of a settlement proposal[176] are two examples of procedures requiring notice to group members.
11. Adopting one or more of these approaches, the court's task could not be characterised as an "auction process"[177]. It would instead be more akin to that used when considering the position of trustees, liquidators, attorneys or persons under disability and would include considerations such as prospects of success and cost of the proceedings[178]. No less significantly, it would allow for conflicts of interest and the best interests of the group members to be neutrally and squarely addressed.

Conclusion and orders

1. For those reasons, the appeal should be dismissed with costs.

2. Wileypark Pty Ltd v AMP Ltd (2018) 265 FCR 1. ↑

3. Wigmans v AMP Ltd [2019] NSWSC 603 at [112]. ↑

4. Wigmans v AMP Ltd [2019] NSWSC 603 at [358]. ↑

5. Wigmans v AMP Ltd [2019] NSWSC 603 at [104]. ↑

6. (2018) 263 FCR 92 at 136 [195]; Wigmans v AMP Ltd [2019] NSWSC 603 at [113]. ↑

7. Perera v GetSwift Ltd (2018) 263 FCR 92 at 135‑136 [188]‑[197]. ↑

8. Perera v GetSwift Ltd (2018) 263 FCR 1 at 48‑50 [169], itself referring to McKay Super Solutions Pty Ltd (Trustee) v Bellamy's Australia Ltd [2017] FCA 947 at [71]. ↑

9. Wigmans v AMP Ltd [2019] NSWSC 603 at [126]; see also at [121], [124]. ↑

10. Wigmans v AMP Ltd [2019] NSWSC 603 at [212]. ↑

11. Wigmans v AMP Ltd [2019] NSWSC 603 at [220]‑[222], [228], [233], [354]. ↑

12. Wigmans v AMP Ltd [2019] NSWSC 603 at [57]‑[58], [350]‑[354]. ↑

13. Wigmans v AMP Ltd [2019] NSWSC 603 at [55]‑[56], [354]. ↑

14. Wigmans v AMP Ltd (2019) 373 ALR 323. ↑

15. Wigmans v AMP Ltd (2019) 373 ALR 323 at 344 [95]. ↑

16. (1882) 22 Ch D 397. The case also considered whether to stay one or both of the English proceedings in favour of a third proceeding brought in the United States in respect of the same events. ↑

17. Wigmans v AMP Ltd (2019) 373 ALR 323 at 335‑336 [55], 341‑342 [84]. ↑

18. Wigmans v AMP Ltd (2019) 373 ALR 323 at 341‑342 [84]. ↑

19. Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 554. ↑

20. Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 554. ↑

21. Carron Iron Co v Maclaren (1855) 5 HLC 416 at 437‑439 [10 ER 961 at 970-971]; McHenry v Lewis (1882) 22 Ch D 397 at 404; Henry v Henry (1996) 185 CLR 571 at 591; CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 390‑394. ↑

22. McHenry v Lewis (1882) 22 Ch D 397 at 404. ↑

23. See Re Perrot Mill Pty Ltd [No 1] (2013) 11 ASTLR 125 at 127 [4]. ↑

24. See Civil Procedure Act 2005 (NSW), s 4(1), Sch 1. ↑

25. BMW Australia Ltd v Brewster (2019) 94 ALJR 51 at 68 [69]; 374 ALR 627 at 643. ↑

26. See Civil Procedure Act 2005 (NSW), s 155. ↑

27. (2002) 211 CLR 1 at 21 [5(8)]. ↑

28. See Revian v Dasford Holdings Pty Ltd [2002] FCA 1119 at [8], [14], [23]; Tongue v Tamworth City Council (2004) 141 FCR 233 at 235 [11], 240 [52]; see also Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1 at 21 [5(8)]. ↑

29. Compare BMW Australia Ltd v Brewster (2019) 94 ALJR 51 at 58 [3], 65 [50]; 374 ALR 627 at 630, 639. ↑

30. (2019) 94 ALJR 51 at 68 [69]; 374 ALR 627 at 643. ↑

31. (2019) 94 ALJR 51 at 68 [70]; 374 ALR 627 at 643. ↑

32. (2019) 94 ALJR 51 at 70-71 [82]; 374 ALR 627 at 647. ↑

33. Noting the reliance placed on United States cases in Perera v GetSwift Ltd (2018) 263 FCR 92 at 136‑137 [193]‑[196] and Perera v GetSwift Ltd (2018) 263 FCR 1 at 32‑33 [95]‑[99]. ↑

34. See Federal Rules of Civil Procedure (US), r 23; see also Class Proceedings Act 1992 (Ont), ss 5, 8. ↑

35. See [9] above. ↑

36. (1882) 22 Ch D 397 at 400. ↑

37. McHenry v Lewis (1882) 22 Ch D 397 at 404. ↑

38. (1990) 171 CLR 538 at 554. ↑

39. Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 554. ↑

40. (1976) 50 ALJR 589 at 592; 9 ALR 509 at 514. ↑

41. (1885) 10 PD 141 at 148. ↑

42. (1990) 171 CLR 538 at 564‑565. ↑

43. [1987] AC 460 at 482‑484. ↑

44. Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 at 483. ↑

45. See Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66. ↑

46. Plan B Trustees Ltd v Parker [No 2] (2013) 11 ASTLR 242 at 253 [47]. ↑

47. In the Application of NSW Trustee and Guardian (2014) 12 ASTLR 513 at 519 [24]‑[25]. ↑

48. Wigmans v AMP Ltd [2019] NSWSC 603 at [53], [82]. ↑

49. (2018) 263 FCR 92 at 153 [279]. ↑

50. Matthew 23:24. ↑

51. Similar schemes are in the Federal Court of Australia Act 1976 (Cth), Pt IVA; Supreme Court Act 1986 (Vic), Pt 4A; Civil Proceedings Act 2011 (Qld), Pt 13A; Supreme Court Civil Procedure Act 1932 (Tas), Pt VII. See also Uniform Civil Rules 2020 (SA), Ch 3, Pt 4; Rules of the Supreme Court 1971 (WA), O 18, r 12; Supreme Court Rules 1987 (NT), O 18; Court Procedures Rules 2006 (ACT), rr 265-270. ↑

52. Corporations Act 2001 (Cth), s 674(2); ASX Listing Rules, r 3.1. ↑

53. Corporations Act, s 1041H; Australian Securities and Investments Commission Act 2001 (Cth), s 12DA(1); Competition and Consumer Act 2010 (Cth), Sch 2 ("Australian Consumer Law"), s 18. ↑

54. Australian Securities and Investments Commission Act, ss 12CA and 12CB; Australian Consumer Law, ss 20 and 21. ↑

55. Wigmans v AMP Ltd (2018) 128 ACSR 534 at 536-537 [10]‑[11]. ↑

56. Wileypark Pty Ltd v AMP Ltd (2018) 265 FCR 1 at 15 [56], 16 [58], 17 [65]. ↑

57. CPA, s 162. ↑

58. See McKay Super Solutions Pty Ltd (Trustee) v Bellamy's Australia Ltd [2017] FCA 947 at [71]; Perera v GetSwift Ltd (2018) 263 FCR 1 at 48-49 [169] ("GetSwift First Instance"). ↑

59. But see BMW Australia Ltd v Brewster (2019) 94 ALJR 51; 374 ALR 627. ↑

60. The nature and scope of the causes of action advanced and relevant case theories. ↑

61. The size of the respective classes, the extent of any bookbuild, the experience of legal practitioners and funders and availability of resources, the state of progress of the proceedings, and the conduct of the representative plaintiffs to date. ↑

62. (1882) 22 Ch D 397. ↑

63. (1996) 185 CLR 571. ↑

64. (1976) 50 ALJR 589; 9 ALR 509. ↑

65. The power in s 67 of the CPA is expressed to be subject to the rules of the court. ↑

66. See, eg, Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218 at 233 [69]‑[70], quoting New South Wales v Plaintiff A [2012] NSWCA 248 at [15]. ↑

67. Jago v District Court (NSW) (1989) 168 CLR 23 at 74; Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 at 266‑267 [14]‑[15]. ↑

68. Mao v AMP Superannuation Ltd [2016] NSWSC 722 at [43]; Moubarak (2019) 100 NSWLR 218 at 233 [69], quoting Plaintiff A [2012] NSWCA 248 at [15]; South Eastern Sydney Local Health District v Lazarus [2019] NSWSC 649 at [14]. ↑

69. CPA, s 58(2)(b)(i). ↑

70. CPA, s 58(2)(b)(vi). ↑

71. CPA, s 58(2)(b)(vii). ↑

72. Owners of "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404 at 421. ↑

73. See generally Brewster (2019) 94 ALJR 51 at 66‑70 [60]‑[81], 80‑82 [136]‑[145]; 374 ALR 627 at 641‑646, 660‑663. ↑

74. CPA, s 157(1)(a). ↑

75. "[T]he claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances" and "the claims of all those persons give rise to a substantial common question of law or fact". ↑

76. Brewster (2019) 94 ALJR 51 at 80 [136]; 374 ALR 627 at 660 (footnotes omitted). ↑

77. Johns v Australian Securities Commission (1993) 178 CLR 408 at 452; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381‑382 [69]‑[70]. ↑

78. New South Wales, Legislative Council, Parliamentary Debates (Hansard), 24 November 2010 at 28066. Part 10 of the CPA was substantially modelled on Pt IVA of the Federal Court of Australia Act, which was in turn introduced following Report 46 of the Australian Law Reform Commission ("ALRC"): ALRC, Grouped Proceedings in the Federal Court, Report No 46 (1988). See also Australia, Senate, Parliamentary Debates (Hansard), 12 September 1991 at 1448; Brewster (2019) 94 ALJR 51 at 70-71 [82]; 374 ALR 627 at 647. ↑

79. Uniform Civil Procedure Rules 2005 (NSW), rr 7.4 and 7.5 as in force on 3 March 2011 ("UCPR"). ↑

80. New South Wales, Legislative Council, Parliamentary Debates (Hansard), 24 November 2010 at 20866-20867. ↑

81. Brewster (2019) 94 ALJR 51 at 70-71 [82]; 374 ALR 627 at 647. ↑

82. CPA, s 162(2). ↑

83. CPA, s 162(4). ↑

84. CPA, s 166(1)(a). ↑

85. CPA, s 166(1)(c). ↑

86. CPA, s 166(1)(d). ↑

87. CPA, s 166(1)(e). ↑

88. CPA, s 166(2)(a). ↑

89. CPA, s 166(2)(b). The phrase "litigation funding arrangement" is not defined. ↑

90. Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398 at 408; Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1 at 27 [21]; Australian Securities and Investments Commission v Richards [2013] FCAFC 89 at [8]. ↑

91. Lopez v Star World Enterprises Pty Ltd (1999) ATPR ¶41-678 at 42,670 [16]; Kelly v Willmott Forests Ltd (In liq) [No 4] (2016) 335 ALR 439 at 454 [63]. ↑

92. Brewster (2019) 94 ALJR 51 at 65 [51]; 374 ALR 627 at 639. ↑

93. See, eg, Federal Rules of Civil Procedure (US), r 23; Class Proceedings Act 1992 (Ont), ss 12 and 13. See also Competition Act 1998 (UK), ss 47A and 47B and Competition Appeal Tribunal Rules 2015 (UK), Pt 5, considered in Merricks v Mastercard Inc [2021] Bus LR 25. ↑

94. ALRC, Grouped Proceedings in the Federal Court, Report No 46 (1988) at 63-64 [147]. See Bellamy's [2017] FCA 947 at [54]; Perera v GetSwift Ltd (2018) 263 FCR 92 at 137 [196]. ↑

95. ALRC, Grouped Proceedings in the Federal Court, Report No 46 (1988) at 63-64 [146]-[147]. ↑

96. ALRC, Integrity, Fairness and Efficiency - An Inquiry into Class Action Proceedings and Third-Party Litigation Funders, Report No 134 (2018) at 102 [4.51]. ↑

97. [1984] AC 398 at 426. See also EI Du Pont de Nemours & Co v Agnew [1987] 2 Lloyd's Rep 585 at 593; GetSwift (2018) 263 FCR 92 at 153 [279]; Wileypark (2018) 265 FCR 1 at 8 [18]. ↑

98. (1855) 5 HLC 416 at 437-439 [10 ER 961 at 970-971]. ↑

99. (1997) 189 CLR 345 at 393-394. ↑

100. (1996) 185 CLR 571 at 591. ↑

101. (1882) 22 Ch D 397. ↑

102. (1976) 50 ALJR 589 at 592; 9 ALR 509 at 514. ↑

103. (1990) 171 CLR 538 at 564-565. ↑

104. (1976) 50 ALJR 589; 9 ALR 509. ↑

105. (2018) 263 FCR 92 at 127 [155]. ↑

106. Sparry's Case (1589) 5 Co Rep 61a at 61a [77 ER 148 at 148] (footnote omitted). ↑

107. See Fitter v Veal (1701) 12 Mod 542 [88 ER 1506]. cf Burrows, Remedies for Torts, Breach of Contract, and Equitable Wrongs, 4th ed (2019) at 163-164. ↑

108. Moyle v West (1553) 1 Dyer 92b at 93a [73 ER 201 at 202]; White v Willis (1759) 2 Wils KB 87 at 87‑88 [95 ER 701 at 701]; Harley v Greenwood (1821) 5 B & Ald 95 at 101‑102 [106 ER 1128 at 1131]; Ostell v Lepage (1851) 5 De G & Sm 95 at 105 [64 ER 1034 at 1038]. See Bullen and Leake, Precedents of Pleadings in Personal Actions in The Superior Courts of Common Law, 3rd ed (1868) at 473‑474. ↑

109. (1747) 3 Atk 587 at 589 [26 ER 1138 at 1140]. ↑

110. Beames, The General Orders of the High Court of Chancery: From the Year 1600 to the Present Period (1815) at 11‑12, O 18; Bohun, Cursus Cancellariae; Or, the Course of Proceedings In the High Court of Chancery, 2nd ed (1723) at 349; Jones v Earl of Strafford (1730) 3 P Wms 79 at 90 [24 ER 977 at 980‑981]; Carwick v Young (1818) 2 Swans 239 at 243‑244 [36 ER 606 at 608]; Ostell (1851) 5 De G & Sm 95 at 105 [64 ER 1034 at 1038]. ↑

111. Pieters v Thompson (1815) G Coop 294 at 294 [35 ER 563 at 563]. ↑

112. Wedderburn v Wedderburn (1840) 2 Beav 208 at 213‑214 [48 ER 1159 at 1161‑1162]. ↑

113. Wedderburn (1840) 2 Beav 208 at 210 [48 ER 1159 at 1160]. See also Harrison v Gurney (1821) 2 Jac & W 563 at 564-565 [37 ER 743 at 744]; Booth v Leycester (1837) 1 Keen 579 at 580 [48 ER 430 at 431]. ↑

114. (1855) 5 HLC 416 at 437 [10 ER 961 at 970]. ↑

115. (1882) 22 Ch D 397 at 400. ↑

116. McHenry (1882) 22 Ch D 397 at 399‑400. See also Peruvian Guano Co v Bockwoldt (1883) 23 Ch D 225 at 232. ↑

117. (1885) 10 PD 141 at 145-147, 153. ↑

118. (1885) 10 PD 141 at 148. ↑

119. (1885) 10 PD 141 at 153. ↑

120. See, eg, The "Hartlepool" (1950) 84 Ll L Rep 145 at 146; The Soya Margareta [1961] 1 WLR 709 at 716-717; [1960] 2 All ER 756 at 762. ↑

121. See, eg, Henry (1996) 185 CLR 571 at 591; CSR (1997) 189 CLR 345 at 393, quoting Carron Iron (1855) 5 HLC 416 at 437 [10 ER 961 at 970]. ↑

122. (1997) 189 CLR 345 at 391. ↑

123. (1988) 165 CLR 197. ↑

124. (1988) 165 CLR 197 at 247-248. ↑

125. (1990) 171 CLR 538 at 564-565. ↑

126. (1996) 185 CLR 571 at 587, 592-593. ↑

127. (1997) 189 CLR 345 at 390-391, 400-401. ↑

128. (1996) 185 CLR 571 at 591. ↑

129. (1996) 185 CLR 571 at 591. ↑

130. Henry (1996) 185 CLR 571 at 592-593. See also De Dampierre v De Dampierre [1988] AC 92 at 108. ↑

131. (1878) 9 Ch D 459 at 462‑463. ↑

132. (1880) 5 CPD 339 at 340, 342. ↑

133. Bennett (1880) 5 CPD 339 at 341. ↑

134. Bennett (1880) 5 CPD 339 at 344 (footnote omitted). ↑

135. (1882) 22 Ch D 397 at 404. See also Commissioners of Sewers of the City of London v Gellatly (1876) 3 Ch D 610 at 615; Templeton v Leviathan Pty Ltd (1921) 30 CLR 34 at 76. cf Reynolds v Reynolds [1977] 2 NSWLR 295 at 307. ↑

136. (1882) 22 Ch D 397 at 401. ↑

137. Amos v Chadwick (1877) 4 Ch D 869 at 872; Bennett (1880) 5 CPD 339 at 342. ↑

138. (1880) 5 CPD 339 at 341, 344. ↑

139. (1882) 22 Ch D 397 at 404. ↑

140. See [91] above. ↑

141. Carron Iron (1855) 5 HLC 416 at 437 [10 ER 961 at 970]. See also McHenry (1882) 22 Ch D 397 at 405. ↑

142. Carron Iron (1855) 5 HLC 416 at 439 [10 ER 961 at 971]. ↑

143. Carron Iron (1855) 5 HLC 416 at 439 [10 ER 961 at 971]. ↑

144. Carron Iron (1855) 5 HLC 416 at 437-438 [10 ER 961 at 970]. ↑

145. Carron Iron (1855) 5 HLC 416 at 438 [10 ER 961 at 971]. ↑

146. See, eg, Johnson Tiles Pty Ltd v Esso Australia Ltd (1999) ATPR ¶41-679; Kirby v Centro Properties Ltd (2008) 253 ALR 65; Smith v Australian Executor Trustees Ltd [2016] NSWSC 17; Bellamy's [2017] FCA 947; Cantor v Audi Australia Pty Ltd [No 2] [2017] FCA 1042; GetSwift (2018) 263 FCR 92; Wileypark (2018) 265 FCR 1. ↑

147. These include: consolidating the proceedings; de-classing one or more of the proceedings; holding a joint trial of all proceedings with each left constituted as open class proceedings; and closing the classes in one or more of the proceedings but leaving one of the proceedings as an open class proceeding, with a joint trial of all: see, eg, Bellamy's [2017] FCA 947 at [9]; Cantor [2017] FCA 1042 at [75]; GetSwift (2018) 263 FCR 92 at 105‑110 [44]-[70]; Southernwood v Brambles Ltd (2019) 137 ACSR 540 at 545 [20]; Wigmans v AMP Ltd (2019) 373 ALR 323 at 326 [7]. ↑

148. Union Steamship Co of New Zealand Ltd v The Caradale (1937) 56 CLR 277 at 281. ↑

149. (2018) 263 FCR 92 at 126 [150]. ↑

150. Wigmans (2019) 373 ALR 323 at 341 [83]. ↑

151. CPA, s 58(2)(b)(ii). ↑

152. See, eg, GetSwift First Instance (2018) 263 FCR 1 at 48-49 [169]; GetSwift (2018) 263 FCR 92 at 136 [195]. ↑

153. See [60] above. ↑

154. Shin Kobe Maru (1994) 181 CLR 404 at 421; Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157 at 190‑191 [103]; Brewster (2019) 94 ALJR 51 at 64 [43]; 374 ALR 627 at 637, quoting Wong v Silkfield Pty Ltd (1999) 199 CLR 255 at 261 [12]. ↑

155. CPA, s 166(2)(b). ↑

156. Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 at 85-86 [44]-[45]. See In re Dallaway [1982] 1 WLR 756 at 759; [1982] 3 All ER 118 at 121; In re Evans [1986] 1 WLR 101 at 107; [1985] 3 All ER 289 at 293. See also Alsop Wilkinson v Neary [1996] 1 WLR 1220 at 1224‑1225; [1995] 1 All ER 431 at 434‑435; Application of Macedonian Orthodox Community Church St Petka Inc [No 3] [2006] NSWSC 1247 at [62]. ↑

157. Corporations Act, Sch 2, ss 90-15 and 90-20. See Re Great Southern Managers Australia Ltd (In liq); Ex parte Jones (2014) 9 BFRA 555 at 568‑569 [63]; Re McDermott and Potts [2019] VSCA 23 at [90]. ↑

158. Leigh re King Bros [2006] NSWSC 315 at [25]; Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher (2011) 281 ALR 38 at 43 [24]; Deputy Commissioner of Taxation, in the matter of ACN 154 520 199 Pty Ltd (In liq) v ACN 154 520 199 Pty Ltd (In liq) [No 2] [2017] FCA 755 at [26]. ↑

159. Application by Beaumont [2018] NSWSC 1705 at [13]-[18]. ↑

160. See, eg, Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1 at 5 [29]; Fisher by her tutor Fisher v Marin [2008] NSWSC 1357 at [29]; Elderfield (by her litigation guardian Visentin) v Transport Accident Commission (2010) 55 MVR 206 at 209 [20]; Stephens-Sidebottom v Victoria (Department of Education and Early Childhood Development) [2011] FCA 893 at [12]; Fairhurst (bht NSW Trustee and Guardian) v Fairhurst [2012] NSWSC 388 at [30]-[38]. ↑

161. See [63] above. ↑

162. Wigmans (2019) 373 ALR 323 at 344 [95]. See also Wileypark (2018) 265 FCR 1 at 8 [17]. ↑

163. Wileypark (2018) 265 FCR 1 at 8 [18]; Kelly v Scenic Tours Pty Ltd [2019] NSWSC 1266 at [97]; Wigmans (2019) 373 ALR 323 at 337 [62]; Stallard v Treasury Wine Estates Ltd [2020] VSC 679 at [20]. ↑

164. See Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at 524 [40]; Dyczynski v Gibson (2020) 381 ALR 1 at 50 [209]. ↑

165. Kirby (2008) 253 ALR 65 at 67 [4]-[6], 68 [9], 72 [30], [32]; Wileypark (2018) 265 FCR 1 at 4 [2], 8 [15]. See also GetSwift (2018) 263 FCR 92 at 120-121 [119]; Impiombato v BHP Billiton Ltd [No 2] (2018) 364 ALR 162 at 186 [111]; Wigmans v AMP Ltd [2019] NSWSC 603 at [335]; Stallard [2020] VSC 679 at [5]; Merricks [2021] Bus LR 25 at 57 [98]. ↑

166. UCPR, rr 20.14 and 20.17. ↑

167. UCPR, r 20.13. ↑

168. UCPR, rr 20.23 and 20.24. See also Super Pty Ltd v SJP Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549 at 563-564; Wenco Industrial Pty Ltd v W W Industries Pty Ltd (2009) 25 VR 119 at 126-127 [17]; Illawarra Hotel Co Pty Ltd v Walton Construction Pty Ltd (2013) 84 NSWLR 410 at 412-414 [15]-[16]. ↑

169. See, eg, Matthews v AusNet Electricity Services Pty Ltd (Ruling No 40) [2015] VSC 131 at [29]; Downie v Spiral Foods Pty Ltd [2016] VSC 411 at [20]; Dillon v RBS Group (Australia) Pty Ltd [No 2] [2018] FCA 395 at [66]; Caason Investments Pty Ltd v Cao [No 2] [2018] FCA 527 at [122]-[123]; Money Max Int Pty Ltd v QBE Insurance Group Ltd (2018) 358 ALR 382 at 416 [156]. ↑

170. See Kirk, "The Case for Contradictors in Approving Class Action Settlements" (2018) 92 Australian Law Journal 716 at 728. ↑

171. For examples of the appointment of contradictors to protect the interests of group members in representative proceedings, see King v AG Australia Holdings Ltd [2003] FCA 1420 at [15]; Dorajay Pty Ltd v Aristocrat Leisure Ltd (2008) 67 ACSR 569 at 574 [11]; Kelly v Willmott Forests (2016) 335 ALR 439 at 443‑444 [4]. ↑

172. Legal Profession Uniform Law (NSW), ss 199 and 200. See, eg, Kelly v Willmott Forests (2016) 335 ALR 439 at 443‑444 [4]. ↑

173. See, eg, CPA, ss 162, 171, 173, 175, 176. See also fn 89 above. ↑

174. See Kirby (2008) 253 ALR 65 at 67 [6], 72 [30], [32]; Wileypark (2018) 265 FCR 1 at 8 [15]. ↑

175. See, eg, Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Ltd [No 2] (2006) 236 ALR 322 at 329-331 [20]‑[24]; Collin v Aspen Pharmacare Australia Pty Ltd [2013] FCA 952 at [3]; Inabu Pty Ltd v Leighton Holdings Ltd [2014] FCA 622; Brett Cattle Co Pty Ltd v Minister for Agriculture [No 3] [2020] FCA 1628. See also Lenthall v Westpac Banking Corporation [No 2] (2020) 144 ACSR 573 at 588 [49]‑[50]. ↑

176. CPA, s 175(1)(a). ↑

177. CPA, s 175(4). ↑

178. Kirby (2008) 253 ALR 65 at 73 [34]; Bellamy's [2017] FCA 947 at [23]; GetSwift (2018) 263 FCR 92 at 102 [32(d)]. ↑

179. See [112] above. ↑

(2011) 281 ALR 38