Wigmans v AMP Ltd

Perera v Getswift Ltd (2018) 263 FCR 92; [2018] FCAFC 202 Peruvian Guano Co v Bockwoldt (1883) 23 ChD 225 Port of Melbourne Authority v Anshun (1981) 147 CLR 589; [1981] HCA 45 PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 Reinsurance Australia Corp Ltd v HIH Casualty and General Insurance Ltd (in liq) [2003] FCA 56; (2003) 254 ALR 29 Reynolds v Reynolds [1977] 2 NSWLR 295 Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 Smith v Australian Executor Trustees Ltd; Creighton v Australian Executor Trustees Ltd [2016] NSWSC 17 Southernwood v Brambles Ltd [2019] FCA 1021 Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Limited (1992) 34 FCR 287; [1992] FCA 71 Studorp Ltd v Robinson [2012] NSWCA 382 The Tillie Lykes [1977] 1 Lloyd's Rep 124 TS Production LLC v Drew Pictures Pty Ltd (2008) 172 FCR 433; [2008] FCAFC 194 Union Steamship Co of New Zealand Ltd v The Caradale (1937) 56 CLR 277; [1937] HCA 1 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55 Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 Westpac Banking Corporation v Lenthall [2019] FCAFC 34; (2019) 366 ALR 136 Wileypark Pty Ltd v AMP Ltd [2018] FCAFC 143; (2018) 359 ALR 43 Texts Cited: A Briggs, Civil Jurisdiction and Judgments (Informa Law from Routledge, 6th ed, 2015) "Transnational Commercial Litigation and the current state of Australian law" in KE Lindgren (ed) International Commercial Litigation and Dispute Resolution (Ross Parsons Centre of Commercial, Corporate and Taxation Law Publication Series, 2010) 43 Lord Woolf, Access to Justice Final Report (1996) M Davies, AS Bell, PGL Brereton and M Douglas, Nygh's Conflict of Laws in Australia (LexisNexis Butterworths) (10th ed, 2019, forthcoming) Category: Principal judgment Parties: Marion Antoinette Wigmans (Applicant) AMP Limited (First Respondent) Komlotex Pty Ltd (Second Respondent) Fernbrook (Aust) Investments Pty Ltd (Third Respondent) Representation: Counsel: J T Gleeson SC, A M Hochcroth, P A Meagher (Applicant) E Collins SC (First Respondent) C A Moore SC, G Donnellan, A d'Arville (Second and Third Respondents)

Solicitors: Quinn Emanuel Urquhart & Sullivan (Applicant) Herbert Smith Freehills (First Respondent) Maurice Blackburn (Second and Third Respondents) File Number(s): 2019/00189027 Publication restriction: N/A Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2019] NSWSC 603 Date of Decision: 23 May 2019 Before: Ward CJ in Eq File Number(s): 2018/0014579; 2018/00309329; 2018/00310082; 2018/00310103 and 2018/00310118

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

[This headnote is not to be read as part of the judgment] Following testimony given by executives of AMP Ltd (AMP) in the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, five class actions were commenced within a short time of each other on behalf of shareholders in AMP who had made investments during periods of time in which it was said that AMP ought to have disclosed certain information to the market. All of the class actions were "open" in the sense that the act of investing in AMP within the period specified in the relevant group definition was sufficient to render a person a group member. Four of the five class actions were commenced in the Federal Court but were transferred to the Supreme Court. Two of the sets of proceedings then consolidated so that five became four: led, respectively, by Ms Wigmans, Komlotex Pty Ltd (Komlotex), Wileypark Pty Ltd (Wileypark) and Mr Georgiou. Each of the respective plaintiffs of the remaining four pending proceedings brought applications to stay each of the other sets of proceedings. AMP, whilst not filing a stay application, supported an outcome in which it would face only one set of proceedings. The primary judge ordered, pursuant to ss 67 and 183 of the Civil Procedure Act 2005 (NSW) and the inherent power of the Court, that the representative proceedings commenced by Ms Wigmans, Wileypark and Mr Georgiou be permanently stayed. Each of Ms Wigmans, Wileypark and Mr Georgiou fell within the definition of group member in the Komlotex proceedings. Ms Wigmans, but neither Wileypark nor Mr Georgiou, made an application for leave to appeal that decision. The issue in respect of which leave to appeal was granted related to the principles applicable to applications to stay and counter-stay multiple open representative action proceedings. The Court held (Bell P; Macfarlan, Meagher, Payne and White JJA agreeing) dismissing the appeal: 1. The test proposed by the appellant for a stay of open class representative proceedings, namely that the first commenced proceedings be shown to be "clearly inappropriate", while not creating a rigid "first filed" test, would, in practice, cast an onus that would be very difficult to discharge and was not appropriate: [44], [73] (Bell P); [101] (Macfarlan JA); [102] (Meagher and Payne JJA); [110] (White JA). 2. The appropriation of the language "not clearly inappropriate" from "forum non conveniens" jurisprudence in the context of multiple open class representative proceedings is inapposite: [76] (Bell P); [101] (Macfarlan JA); [102] (Meagher and Payne JJA); [110] (White JA). Voth v Manildra Flour Mills Pty Ltd (1991) 171 CLR 538; [1990] HCA 55, distinguished. 1. Although the order of filing of proceedings is a relevant consideration in any application to stay proceedings, the common law has never favoured a "first filed" rule as a means of resolving which of competing proceedings should proceed: [59]-[62], [68]-[69] (Bell P); [101] (Macfarlan JA); [102] (Meagher and Payne JJA); [110] (White JA). Perera v Getswift Ltd (2018) 263 FCR 92; [2018] FCAFC 202, considered. 1. The sequence of filing of competing proceedings is a less relevant consideration in an application to stay proceedings where the proceedings have been commenced within a short time of each other: [52], [69] (Bell P); [101] (Macfarlan JA); [102] (Meagher and Payne JJA); [110] (White JA). 2. The strong policy of the law, in a number of different areas and contexts, is to avoid a multiplicity of proceedings: [51]-[57] (Bell P); [101] (Macfarlan JA); [102] (Meagher and Payne JJA); [110] (White JA). 3. Unlike cases where duplicative proceedings have been found to be vexatious and oppressive, neither Ms Wigmans nor Komlotex were parties to the other's proceedings and the subsequently commenced proceedings did not constitute an abuse of process: [77]-[80] (Bell P); [101] (Macfarlan JA); [102] (Meagher and Payne JJA); [110] (White JA). Moore v Inglis (1976) 50 ALJR 589; (1976) 9 ALR 509; distinguished. 1. The primary judge exercised the discretion vested in her by the Civil Procedure Act by reference to a range of relevant considerations and in a manner that was open to her and undertaken without error: [91]-[94] (Bell P); [101] (Macfarlan JA); [102] (Meagher and Payne JJA); [110] (White JA). 2. The interests of justice to be considered are those of group members rather than litigation funders or legal representatives: [39] (Bell P); [101] (Macfarlan JA); [102], [104] (Meagher and Payne JJA); [110] (White JA).

Judgment

1. BELL P: Unlike the application for leave to appeal recently considered in Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd [2019] NSWCA 61; (2019) 367 ALR 146 (Hive) which involved "litigation about where to litigate" (see at [27]), the application for leave to appeal in the present case involves litigation about who is to litigate in the context of multiple open class actions brought against AMP Ltd (AMP) following testimony given in the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (the Royal Commission) on 16 and 17 April 2018 by executives of AMP.
2. Within a week of that evidence having been given, a flurry of press releases signalled that five firms of solicitors were investigating potential class actions. Within seven weeks, some five class actions had been commenced on behalf of shareholders in AMP who had made investments during periods of time in which it was said that AMP ought to have disclosed to the market certain information which had emerged as a result of the testimony in the Royal Commission. Broadly speaking, damages have been sought for breach of continuous disclosure obligations provided by the Corporations Act 2001 (Cth) (Corporations Act). Related claims have also been formulated in a number of the cases under the Australian Consumer Law and cognate statutory provisions.
3. Securities class actions of this kind have become a common feature of the Australian legal landscape following the introduction of procedures for representative proceedings or class actions in the Supreme Court of New South Wales in 2010 by the insertion of Pt 10 into the Civil Procedure Act 2005 (NSW) (Civil Procedure Act), similar provisions having been introduced by Part IVA of the Federal Court of Australia Act 1976 (Cth) (Federal Court of Australia Act) which commenced in 1992.
4. All of the class actions in the present case were "open" class actions in the sense that, apart from the act of investment in the defendant company within the period specified in the class or group definition, none of the class or group members had to take any further step to become a member of the class such as enter into a retainer agreement with a firm of solicitors and/or a funding agreement with a funder. This means that an investor could be a member of multiple classes or groups, depending on the degree of overlap in the definitions of class or group. It should be noted that, even within an open class, persons or entities falling within the class definition may enter into retainer and/or funding agreements (see, for example, Impiombato v BHP Billiton Limited (No 2) [2018] FCA 2045; (2018) 364 ALR 162) but that fact is not a criterion for membership of the group or class, although it may have implications for the distribution of any settlement ultimately secured and/or the structuring of any common fund orders (as to which, see Brewster v BMW Australia Ltd [2019] NSWCA 35; (2019) 366 ALR 171; and Westpac Banking Corporation v Lenthall [2019] FCAFC 34; (2019) 366 ALR 136; noting that both decisions are subject to an appeal to the High Court which is currently reserved).

The judgment at first instance and the proposed grounds of appeal

1. The primary judge's decision to grant a stay of the Wigmans proceeding involved, in essence, the application of an approach that had been endorsed by the Full Federal Court in GetSwift. This was described in submissions as involving a "multi-factorial" analysis of "relevant factors to be considered and balanced in a qualitative appraisal".
2. Her Honour identified as the relevant factors to be taken into account in the present case: 1. the competing funding proposals, costs estimates and net hypothetical return to group members; 2. the proposals for security for costs; 3. the nature and scope of the causes of action advanced; 4. the size of the respective classes; 5. the extent of any bookbuild; 6. the experience of the legal practitioners and availability of legal resources; 7. the state of progress of the proceedings; and 8. the conduct of the representative plaintiffs to date. These factors bore some similarity to factors which are evidently taken into account in Canada in so-called "carriage motions": see the discussion by Beach J in Bellamy's at [53]. They also have an affinity with various non-exhaustive factors identified as relevant by Beach J in Bellamy's at [71].
3. In a detailed judgment, the primary judge worked through each of these factors in light of the evidence that had been presented and the voluminous submissions that had been made on behalf of the parties. She did so in a most thorough way and her conclusions were relevantly summarised as follows (at [350]−[354]): "After much consideration, I have formed the view that the consolidated Komlotex/Fernbrook proceeding should proceed. [I] … have concluded in summary, that: the first mover advantage should be given no weight; there is no sensible basis to differentiate between the respective legal teams (each of which I am satisfied has the skill and capacity to conduct proceedings of this kind in the interests of class members); the bookbuilding efforts of some of the representative plaintiffs should be disregarded; the emphasis placed on the 'informed choice' made by institutional investors who have signed up to the Wileypark/IMF proposal has been overstated; and that both the perceived advantage of the 'no additional cost' expertise of IMF in statistical analysis of data or project management services (for which it ultimately would be remunerated by way of its funding commission) and the fact that the staff with the decision-making role in Augusta are qualified lawyers have been overstated; and that there is no real juridical advantage in the pleading put forward by any of the parties over that of the others. I consider that there are potential incentives and corresponding disincentives in all of the funding models; and that, ultimately, it is the inevitability of court scrutiny of the overall costs at the time of any settlement or, if the matter proceeds to a contested hearing, judgment that will provide the most sure incentive for solicitors and funders to act responsibly and in the best interests of group members. I accept that the Wigmans proceeding is the most advanced (and that this reflects an admirable preparedness by Ms Wigmans to meet the stringent demands on matters commenced in the commercial list in this Court for the efficient preparation of matters for hearing) but I consider that the remaining proceedings will quickly be able to 'catch up' when equally under the case management of this list; and I have regard to the fact that there is a legitimate difference of opinion in terms of litigation strategy as to whether an early mediation would be in the best interests of group members. I have placed no weight on the complaints made by various of the representative plaintiffs as to the conduct to date of the other competing proceedings … The factor on which I have placed most weight is that the 'no win, no fee' model proposed by Komlotex/Fernbrook involves no funding commission; that the modelling undertaken as to costs and returns (accepting the limitations of any process which involves standardising the different assumptions or which the respective costs estimates are based) indicates that, on most scenarios, the net return for group members is likely to be the highest or around the highest on the Komlotex/Fernbrook scenario; and that Maurice Blackburn is prepared to proffer security for costs to match that provided by Ms Wigmans in the Wigmans proceeding."

Grounds 2 and 3 of the proposed notice of appeal

1. It is convenient first to deal with proposed appeal grounds 2 and 3. They are linked, as is made explicit in proposed ground 3(a). Proposed ground 2, despite the language in which it is expressed, in truth raised no issue of principle. Rather, it was an attack on the primary judge's attempt to make an assessment, necessarily imperfect and future looking, of the prospective returns to group members on two broad assumptions, namely that the proceedings would run to finality or that they would settle by a particular and much earlier point in time. The legal costs incurred in the former scenario would obviously exceed those in the latter.
2. The primary judge was armed with the hourly rates of proposed counsel and solicitors for the Komlotex "team" and the Wigmans "team". She also knew the rates of uplift that the solicitors for Komlotex proposed to charge (as well as the negotiated cap on that uplift) and the commission that the funders of the Wigmans proceedings proposed to take depending on the overall amount of recovery. These were two important integers in assessing the likely economic consequences to group or class members in the event that one or other sets of proceedings went forward.
3. An attack was made on her Honour's evident assumption that both "teams" would take the same time to secure the same result (and indeed that the same result would be achieved by both teams). It was thus put, on behalf of Ms Wigmans, for example, that her legal team may prosecute the claim more efficiently than the Komlotex team and/or secure a superior outcome, whether as a result of forensic decisions during the course of the trial or superior skill in extracting settlement, such that it was unsafe and necessarily speculative to assume that the "cost" in terms of both legal costs and uplift (in the case of the Komlotex proceedings) and commission (in the case of the Wigmans proceedings) could be meaningfully compared through the exercise of standardisation to which the primary judge referred at [354] of her judgment (reproduced at [19] above) and explained far more fully at [178]-[216] in terms which do not require reproduction in these reasons.
4. Aside from the fact, as I have noted above, that the points sought to be raised by proposed appeal ground 2 do not, in my opinion, involve any issue of principle, I do not consider that the attack sought to be made on the primary judge's approach to be persuasive. The primary judge was entitled to proceed on the basis that the respective legal teams were of equal competence (and no challenge was made to her judgment in this regard). Competence includes efficiency in the conduct of litigation. Both legal teams were also subject to identical ethical constraints in relation to the conduct of proceedings as well as, importantly, to the implied obligations imposed on legal representatives by s 56(4) of the Civil Procedure Act.

Ground 1 of the draft notice of appeal

1. The terms of ground 1 of the proposed notice of appeal have been set out in [22] above. It goes to the question as to what principles are to be applied where one defendant, here AMP, is the subject of multiple "open" class actions, each commenced within a short space of time of each other by different plaintiffs, and multiple applications and cross applications for stays of proceedings have been sought.
2. Ms Wigmans' argument rests on an asserted analogy with principles of lis alibi pendens associated with the High Court's decision in Henry v Henry (1996) 185 CLR 571 at 591; [1996] HCA 51 (Henry v Henry), the "clearly inappropriate forum" language of Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55 (Voth) and abuse of process principles associated with the decisions in Moore v Inglis (1976) 50 ALJR 589; (1976) 9 ALR 509 at 513-516 (Moore v Inglis) and Walton v Gardiner (1993) 177 CLR 378 at 411; [1993] HCA 77.
3. As will be seen, none of those analogies is perfect, and the approach advanced by Ms Wigmans would operate in practice strongly to favour that party which is first to file open class action or representative proceedings, particularly where the class or group is relatively broadly defined. That is because that approach depends on a prima facie conclusion that subsequent proceedings are vexatious and oppressive and an onus cast on the proponents of subsequently commenced proceedings to demonstrate that the first commenced proceedings are "clearly inappropriate". Whilst this formulation does not create a rigid first filed test, the operation of the onus and the difficulties of characterising proceedings as "clearly inappropriate" will mean that the onus will in practice be very difficult to discharge.
4. Ms Wigmans also sought to develop an argument to the effect that the structure of the provisions in the Civil Procedure Act relating to class actions supported her contention that primacy should be given to the proceedings she commenced because they were first in time. In particular, she emphasised that s 157 of the Civil Procedure Act authorised her commencement of proceedings, that s 161 of the Civil Procedure Act authorised her to describe or otherwise identify the group members and to specify the claims made and relief claimed on their behalf and that, if a group member wished to extricate him, her or itself from the group, he, she or it could do this at the opting out stage (see s 162 of the Civil Procedure Act) and that, at any time, a group member dissatisfied with the adequacy of representation by the representative party could apply to have the representative party replaced, pursuant to s 171 of the Civil Procedure Act.

Multiplicity of proceedings

1. The issue presented by the first ground of appeal is one of multiplicity of proceedings.
2. The strong policy of the law is to avoid a multiplicity of proceedings. This can be seen in a number of different areas and contexts. Section 63 of the Supreme Court Act provides, for example, that: "The Court shall grant, either absolutely or on terms, all such remedies as any party may appear to be entitled to in respect of any legal or equitable claim brought forward in the proceedings so that, as far as possible, all matters in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of those matters avoided." A similar provision may be found in s 22 of the Federal Court of Australia Act. So, too, the principles associated with Port of Melbourne Authority v Anshun (1981) 147 CLR 589; [1981] HCA 45 and the doctrine of res judicata serve the same common goal.
3. Within our federal system, the same concern informs the cross-vesting regime. Thus, s 5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) and its analogues provides for the transfer to another state or territory or federal court of proceedings which arise out of, or relate to, other pending proceedings; see also s 20(4)(f) of the Service and Execution of Process Act 1992 (Cth).
4. The concern to minimise if not avoid multiple proceedings which is addressed in the cross-vesting regime was also a concern which predated the introduction of that regime. Thus, in Union Steamship Co of New Zealand Ltd v The Caradale (1937) 56 CLR 277 at 281; [1937] HCA 1 (The Caradale), Sir Owen Dixon observed that "[t]he inconvenience and embarrassment of allowing two independent actions involving the same question of liability to proceed contemporaneously in different courts needs no elaboration."
5. Where there are multiple sets of proceedings within one court, consolidation is the tool most frequently deployed to address the problem of multiplicity. It is not, however, the sole tool.
6. In McHenry v Lewis (1882) 22 ChD 397, there were two proceedings pending in the Chancery Division brought on behalf of share and bondholders in relation to shares in and bonds issued by the American and Great Western Railroad Company, but no orders for consolidation had been sought. In these circumstances, the Master of the Rolls, Sir George Jessel, in language reminiscent and certainly in the spirit of modern case management found in the famous report on civil procedure authored by his successor, Lord Woolf, over 100 years later (Access to Justice Final Report, 1996), said (at 404): "I quite agree that you ought not to allow a company, or directors of a company to be sued by a multitude of shareholders in a multitude of separate actions, each of which is instituted on behalf of all the shareholders. 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."

The present case

1. Ms Wigmans' contention starts with the proposition that, as her proceedings were commenced first, the application to stay her proceedings should be considered first. This starting point may be questionable: if Ms Wigmans filed her application to stay the Komlotex proceedings first, why should that application not be heard first, and Ms Wigmans assume the onus of demonstrating that Komlotex's proceedings are clearly inappropriate?
2. Putting this difficulty to one side, as I have noted above, Ms Wigmans says that, as her proceedings were regularly commenced, can provide ample relief to all members of the class, will work no injustice to AMP in the sense that security for the AMP's costs if Ms Wigmans is unsuccessful can or has been provided and do not otherwise amount to an abuse of process, there is no basis for staying them. Once this conclusion is reached, she submits that all the subsequently filed proceedings are necessarily duplicative, and calls in aid decisions such as Moore v Inglis to support the submission that the duplicative proceedings are vexatious and oppressive.
3. But if there is any vexation or oppression by reason of duplicated or overlapping proceedings, the vexation and oppression is to the defendant. That is not Ms Wigmans but AMP, yet, as with the respondent in GetSwift, AMP has been agnostic as to which of the sets of proceedings continue against it, so long as adequate security is provided and it is only facing one set of proceedings.
4. Further, as the primary judge observed and as I have explained at [44] above, the way Ms Wigmans' submission was formulated, and the approach articulated on her behalf, gives considerable advantage to the set of proceedings which is first filed or (possibly) first served, noting that the first filed proceeding need not necessarily be the first served proceeding. The same reasons that have been advanced against a rigid first filed rule in the cases to which I have referred at [57]−[62] above also point against the force of this argument.
5. Cases such as the present also differ in at least three key respects from cases such as Henry v Henry and CSR v Cigna upon which Ms Wigmans relies by analogy, as is made explicit in the first ground of the draft notice of appeal, reproduced at [22] above and in her written submissions.
6. Firstly, unlike either of those two cases, in the present case the party seeking the stay of proceedings was not the party who was being sued twice or exposed to the costs and risks of concurrent sets of proceedings. That was AMP but, as I have pointed out above, AMP has not sought a stay of proceedings (although its broad position is that it should not be exposed to multiple proceedings). But the key point is that neither Komlotex nor Ms Wigmans are in positions analogous with the applicants for a stay of proceedings in either Henry v Henry or CSR v Cigna. They are not being vexed or oppressed by being sued twice.

Conclusion

1. For the reasons expressed in [27]−[41] above, I would refuse leave to appeal on grounds 2 and 3.
2. I would grant leave to appeal in respect of ground 1 but would dismiss the appeal. It follows that Ms Wigmans should pay the costs of the application for leave and of the appeal.
3. MACFARLAN JA: I agree with Bell P.
4. MEAGHER AND PAYNE JJA: We have read the decision of Bell P in draft and agree with the orders proposed by his Honour and with his reasons. We add only a few remarks in elaboration, which are not intended to detract from that agreement.
5. The problems with competing "open" representative actions, such as those in this litigation, arise from the fact of multiple actions being brought against the same defendant on behalf of the same group members which make the same claims or raise the same or substantially the same issues. That multiplicity of actions, unless addressed, has the consequence that there will be substantial, as well as unnecessary, duplication of legal and other work undertaken on behalf of the separately represented group members and the defendants, as well as inefficient use of the judicial and administrative resources of the Court.
6. As the President observes at [7]-[11], there are several ways in which, depending on the circumstances, the Court might address the fact of such multiple proceedings to achieve the just and efficient determination of the claims and issues in the underlying proceedings. In doing so, as was emphasised by Allsop CJ in Wileypark at [18]; (2018) 359 ALR 43, the persons whose interests must be given primary consideration are the represented group members and the defendants. Although the existence of the multiple representative actions is the result of the competitive activity of funders and law firms in the 'representative proceedings marketplace', the Court is not concerned with promoting or protecting the self-interests of those actors.
7. As to the position of the representative parties, it bears emphasising that as an "open" representative action to the extent that Ms Wigmans herself, or any other group member, does not wish to participate in the Komlotex proceedings they may, at the appropriate time, opt out: Civil Procedure Act 2005 (NSW), s 162. Ms Wigmans and those parties who have chosen to opt out could commence their own proceedings against AMP. If a sufficient number choose to opt out it is possible that separate representative proceedings against the defendant, AMP, could be commenced.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 October 2019