Wigmans v AMP Ltd; Fernbrook

Catchwords

[2002] FCA 957 Darwalla Milling Company Pty Ltd v F Hoffman-La Roche Ltd (No 2) [2006] FCA 1388 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588[2011] HCA 21 Hassid v Queensland Bulk Water Supply Authority t/as Seqwater [2017] NSWSC 599 Henry v Henry (1996) 185 CLR 571[1996] HCA 51 Honeysett v The Queen (2014) 253 CLR 122[2014] HCA 29 Inabu Pty Ltd v Leighton Holdings Ltd (No 2) [2014] FCA 911 Jeffery and Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75[2009] HCA 43 Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 56(1996) 139 ALR 549 Locking v Armtec Infrastructure Inc 2013 ONSC 331 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705[2017] VSCA 187 Melbourne City Investments v Leighton Holdings Ltd [2015] VSCA 235 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427[2011] HCA 48 Money Max Int Pty Ltd (as trustee for the Goldie Superannuation Fund) v QBE Insurance Group Ltd [2018] FCA 1030(2018) 358 ALR 382 Moore v Inglis (1976) 9 ALR 509 Oliver v Commonwealth Bank of Australia (No 2) (2012) 205 FCR 540[2012] FCA 755 Perera v GetSwift Ltd [2018] FCA 732[2013] SASCFC 2 Ringrow Pty Ltd v BP Australia Ltd (2003) 130 FCR 569[2003] FCA 933 Rogers v The Queen (1994) 181 CLR 251

Judgment (61 paragraphs)

[1]

Background

The commencement of the competing representative proceedings followed disclosures made during evidence given by AMP executives at the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (Royal Commission) on 16 and 17 April 2018, after which AMP's share price fell sharply. That evidence has given rise to allegations that AMP contravened its continuous disclosure obligations and statutory prohibitions on misleading or deceptive conduct by failing to disclose to the market that it had deliberately charged its customers fees for ongoing financial advice and related services where no such services were provided; and had misled the regulator, Australian Securities and Investments Commission (ASIC), as to the nature and extent of that misconduct over an extended period. There is also now a claim of unconscionable conduct in relation to those matters in one of the proceedings (the Wigmans proceeding).
On 23 April 2018, media announcements were made by various legal firms that they were investigating a potential class action against AMP; namely, by those now acting in each of: the Wigmans proceeding, Quinn Emanuel Urquhart & Sullivan (Quinn Emanuel); the Georgiou proceeding, Shine Lawyers (Shine); and the Fernbrook proceeding, Slater & Gordon Limited (Slater & Gordon).
From as early as 9 May 2018, through up until 7 June 2018, the respective sets of representative proceedings now before the Court were commenced. The first in time (albeit only by a matter of hours), the Wigmans proceeding, was commenced in this Court in the commercial list. The remaining sets of proceedings were commenced in the Federal Court and subsequently transferred to this Court (see further below). The respective proceedings are presently at different stages in terms of their preparation for hearing, the most advanced being the Wigmans proceeding, which has been case managed since its commencement with the usual expedition in the commercial list (a matter on which Ms Wigmans places no little weight on the present applications).
Various of the representative plaintiffs have indicated their intention to seek leave to amend the manner in which the existing claims are pleaded and, where that is the case, the present applications have been conducted on the basis of the foreshadowed amended claims.
The factual allegations in the competing proceedings (as summarised by AMP in its submissions at [7]) are allegations, in respect of alleged policies of AMP as to the payment of ongoing service fees by clients, to the effect that: AMP did not provide to some clients the services to which those fees related; AMP made misleading statements to ASIC in connection with the charging of those fees and a report in relation to those matters prepared by Clayton Utz (matters which are alleged to falsify representations made by AMP to the Australian Securities Exchange (ASX)); and that AMP's conduct was material and should have been disclosed by AMP to the ASX as part of its ongoing disclosure obligations. It is alleged that AMP's conduct inflated the price of its shares; and that some group members relied on the alleged representations in acquiring AMP shares. (I interpose here to note that Wileypark cavils with the proposition by AMP that there is uniformity between the factual allegations made in each of the proceedings, highlighting differences between its pleaded case and that of other representative plaintiffs (see [43], [60] and [72] of Wileypark's written submissions in chief; and Wileypark's submissions in reply at [26]).)
There is considerable overlap in the claims periods in the competing proceedings but they are not identical. In the Wigmans proceeding, the claim periods are: from 10 May 2012 to 17 April 2018 (in relation to the continuous disclosure and misleading or deceptive conduct claims) and prior to 17 April 2018 (in respect of the unconscionable conduct claim). In the remaining proceedings, the claim periods (as revised where an amended pleading has been foreshadowed and, in Wileypark's case, to be further revised having regard to its acceptance of AMP's submissions on the relevant limitations period) are as follows. In the Wileypark proceeding: 10 May 2012-17 April 2018 (in the case of group members who acquired AMP ordinary shares) and 7 June 2012-17 April 2018 (in the case of group members who acquired American Depositary Receipts (ADRs)). In the Georgiou proceeding: 10 May 2012-13 April 2018 (in the case of AMP ordinary shares) and 7 June 2012 - 13 April 2018 (in the case of ADRs). In the proposed Komlotex/Fernbrook proceeding: 10 May 2012-15 April 2018 (in the case of AMP ordinary shares) and 7 June 2012-15 April 2018 (in the case of ADRs).
Thus, in none of the representative proceedings other than the Wigmans proceeding does the claim period extend back before 10 May 2012; and it is only in the Wigmans and Wileypark proceedings that the claim period includes the period from 16 April 2018-17 April 2018 (that being the period in which the relevant disclosures were being made at the Royal Commission). The difference between the end date of 13 April 2018 in the Georgiou proceeding and of 15 April 2018 in the Komlotex/Fernbrook proceeding relates to whether the end date is the last business day before 16 April 2018 (when the relevant disclosures commenced) or the day immediately before the day those disclosures commenced (that being a Sunday).
After some interlocutory stoushes between the plaintiffs in the competing representative proceedings (see Wigmans v AMP Ltd [2018] NSWSC 1045; (2018) 128 ACSR 534; Wigmans v AMP Ltd [2018] NSWSC 1118, Wileypark Pty Ltd v AMP Ltd [2018] FCAFC 143; (2018) 359 ALR 43 (Wileypark v AMP)), the detail of which it is neither necessary nor particularly instructive here to recount (though I note that reference is made in some of the submissions on the present applications to certain of the parties' conduct in that regard and I did regard that aspect of the matter as an "unseemly debacle"), orders were made by the Full Court of the Federal Court (the Full Court) on 29 August 2018, transferring to this Court each of the proceedings that had been commenced in the Federal Court.

[2]

The proceedings and present applications

The proceedings, and the applications now before me in each of them, may be summarised as follows.

[3]

Wigmans proceeding (2018/00145792)

Ms Wigmans commenced proceedings in this Court on 9 May 2018 (the Wigmans proceeding). The solicitor on the record in the Wigmans proceeding is Mr Damian Scattini of Quinn Emanuel. Mr Scattini was formerly a partner in Maurice Blackburn (the solicitors acting for Komlotex - see below).
By notice of motion filed 29 August 2018, Ms Wigmans seeks, relevantly, an order that each of the other four representative proceedings (referred to in the notice of motion as the "transferred FCA proceedings"): (a) be permanently stayed; (b) in the alternative, no longer continue as a representative proceeding; or (c) in the further alternative, continue as a closed class limited to the applicant in each of the respective transferred FCA proceedings and such persons as have, as at the date the order is made, signed a funding agreement in respect of one of the transferred FCA proceedings, provided that such persons have not also, as at that date: (i) retained the lawyers for the plaintiff in these proceedings to act for them in these proceedings; and/or (ii) signed a funding agreement in respect of these proceedings; or (d) in the further alternative, be stayed pending the resolution of the common questions in these proceedings.
By amended notice of motion filed 24 October 2018, Ms Wigmans also seeks, pursuant to s 183 of the Civil Procedure Act, a common fund order (CFO), namely an order equalising, as between group members, the funder's costs.

[4]

Wileypark proceeding (2018/310082)

The second set of representative proceedings was commenced by Wileypark Pty Ltd (Wileypark) also on 9 May 2018 (but around seven hours after the Wigmans proceeding at approximately 11:00 pm) in the Federal Court (the Wileypark proceeding). The solicitor acting for Wileypark in the proceeding is Mr Tim Finney of Phi Finney McDonald (Phi Finney).
By amended notice of motion filed 9 November 2018, Wileypark seeks orders both as to the resolution of the multiplicity of suits and the making of a CFO. As to the former, what is sought (comparable in some respects to the orders sought in the Wigmans proceeding), is: 1. An order in each of the Georgiou Proceeding, Wigmans Proceeding, Komlotex Proceeding and Fernbrook Proceeding (Related Proceedings), having regard to the Court's findings as to what is in the best interests of Group Members (including those Group Members in multiple of the Related Proceedings, but who have not registered or signed litigation funding agreements with particular litigation funders): a. case managing that proceeding to an initial trial either alone or with any one or more of the Related Proceedings or this Proceeding; and/or b. closing the class of that proceeding (by limiting it only to group members who have signed litigation funding agreements with the respective funder); and/or c. consolidating (in whole or in part), that proceeding with any one or more of the Related Proceedings or this Proceeding, together with other incidental orders appropriate or necessary to facilitate the just conduct of the proceedings so consolidated; and/or d. staying (whether permanently or temporarily) that proceeding.

[5]

Georgiou proceeding (2018/310103)

Mr Georgiou commenced proceedings in the Federal Court, some two weeks after the first two sets of proceedings were commenced, on 25 May 2018 (the Georgiou proceeding). The solicitor acting for Mr Georgiou in that proceeding is Ms Vicky Antzoulatos of Shine.
By notice of motion filed 24 October 2018, Georgiou seeks orders both as to the resolution of the multiplicity of suits and the making of a CFO. As to the former, what is sought is broadly the same as that sought by Ms Wigmans: 1. Pursuant to ss 33N and 33ZF of the Federal Court of Australia Act 1976 (Cth) (FCA) and/or pursuant to ss 67, 166 and 183 of the Civil Procedure Act 2005 (NSW) (CPA) and/or pursuant to the inherent jurisdiction of the Court, each of the Wigmans proceeding, the Fernbrook proceeding and the Komlotex proceeding: a. be permanently stayed; b. in the alternative, no longer continue as a representative proceeding; or c. in the further alternative, continue as a closed class limited to: i. the plaintiff in each of the respective proceedings and such persons as have, as at the date the order is made, signed a funding agreement in respect of each of the proceedings, provided that such persons have not also, as at the date of the relevant order: 1. retained the lawyers for the plaintiff to act for them in these proceedings; and/or 2. signed a funding agreement in respect of this proceeding; or d. in the further alternative, be stayed pending the resolution of the common questions in these proceedings.

[6]

Fernbrook proceeding (2018/309329)

On 6 June 2018, Fernbrook (Aust) Investments Pty Ltd (Fernbrook) commenced proceedings in the Federal Court (the Fernbrook proceeding). The solicitor presently acting for Fernbrook is Mr Benedict Hardwick of Slater & Gordon.
As adverted to above, Fernbrook now seeks to be consolidated with the Komlotex proceeding. Mr Hardwick has deposed (see his affidavit affirmed 20 November 2018 at [13]) that, in the days following learning of the Komlotex funding proposal and Komlotex' proposal to seek leave to amend its claim period to match that in the Fernbrook and Wigmans proceedings (i.e., 10 May 2012-15 April 2018), he formed the view that the Komlotex "no win, no fee" funding proposal (which now does not involve "a litigation funder seeking a commercial return on funds put at risk during the proceeding") meant that, absent a very substantial difference between the legal costs of Komlotex' solicitors (Maurice Blackburn) and the legal costs of an alternative firm, the Komlotex proposal was likely to provide better returns to group members than any funded alternatives. In other words, Mr Hardwick has deposed to having formed the view that the Komlotex proposal is superior to that of both Fernbrook and of each of the competing proceedings; and that the Komlotex funding proposal is therefore in the best interests of group members (a matter to which Komlotex points in its submissions but which others of the representative plaintiffs submit should carry no weight) (see Komlotex' submissions in chief at [56]).

[7]

Komlotex proceeding (2018/310118)

Finally, Komlotex Pty Ltd (Komlotex), as trustee for Breda Sinclair Industries Superannuation Fund, commenced proceedings in the Federal Court on 7 June 2018. The solicitor on the record in this proceeding is Mr Andrew Watson of Maurice Blackburn.
By separate notices of motion, each filed 24 October 2018, Komlotex seeks orders in each of the other four proceedings as to the resolution of the multiplicity of suits. Komlotex does not now press for a CFO (since it is no longer proposed that a third party funder be involved in the matter) and, in light of the decision of the Full Court in Perera v GetSwift Ltd [2018] FCAFC 202 (GetSwift Appeal), Komlotex also does not now press for the alternative relief set out in prayers 2, 3 or 4 of its 24 October 2018 notices of motion, pressing only for an order that the competing proceedings be permanently stayed (prayer 1 in each of those notices of motion). Unsurprisingly, since Fernbrook supports the consolidation motion, Komlotex does not press its stay application in relation to the Fernbrook proceeding. (It cavils, however, with the criticism by Ms Wigmans in her submissions that it has 'abandoned' its 24 October 2018 motions or that it has been guilty of any "dilatory conduct" in that respect.)

[8]

Overview

The primary basis on which Ms Wigmans seeks a stay of the competing representative proceedings is that the commencement and/or continuation of those proceedings is an abuse of process. In this regard, Ms Wigmans invokes the principle that a person may not pursue multiple legal proceedings seeking the same relief against the one defendant. Ms Wigmans argues that the same principle applies in the context of representative proceedings; and submits that it will ordinarily be an abuse of process for a member of one group (here, the Wigmans group) to commence a later representative proceeding seeking the same relief against the same defendant on behalf of the same persons.
Ms Wigmans submits (though this is by no means accepted by the other representative plaintiffs) that none of the plaintiffs in the competing representative proceedings has identified any deficiency in the (regularly commenced and first-filed) Wigmans proceeding, nor any juridical advantage that its (or his) proceeding has over the Wigmans proceeding, so as to warrant any different conclusion.
Contradicting Ms Wigmans' submission as to the absence of any identification of deficiencies in her proceeding, Mr Georgiou in his submissions has summarised the deficiencies identified by him and the other representative plaintiffs in relation to Ms Wigmans' proceeding as being: the inclusion of an unconscionable conduct claim; the non-inclusion of a claim relating to ADRs; the extension of the relevant period to 17 April 2018; an "inexplicable rush" to serve evidence and otherwise progress the proceedings, notwithstanding that multiplicity issues had not been resolved and orders for service of evidence had not been made; the objectively higher funding commissions; the potential for the funder for the Wigmans proceeding to obtain a "windfall gain"; and an inferior projected return to group members on a variety of likely scenarios (and Mr Georgiou submits that the supervision of the Court could not be relied on to remedy all those deficiencies in the Wigmans proceeding). I deal with those criticisms of the Wigmans proceeding in due course.
In the alternative to her primary (abuse of process) argument, Ms Wigmans presses her claim for a stay of the competing representative proceedings on the basis of case management principles, arguing that it is in the interests of the just, quick and cheap resolution of the real issues in dispute for the Wigmans proceeding (which is further advanced in terms of preparation for mediation or an ultimate hearing) to be the one representative proceeding that is permitted to continue. That said, Ms Wigmans submits that this should be the outcome without the Court embarking upon a multifactorial "GetSwift-style" analysis.

[9]

The GetSwift proceedings

As there was much emphasis on the decisions both at first instance and on appeal in the GetSwift proceedings, it is convenient at the outset briefly to consider what was there said as to matters of relevance to the applications presently before me.
In the GetSwift proceedings, there were three competing open class representative proceedings in which the cases proposed to be advanced were found by the primary judge to be substantially the same. At first instance (Perera v GetSwift Ltd [2018] FCA 732; (2018) 127 ACSR 1) (GetSwift), Lee J concluded that it would be an abuse of process for more than one of those proceedings to continue and ordered that two of the proceedings be permanently stayed (see at [306]ff; [345]-[347]). On appeal, the Full Court (Middleton, Murphy and Beach JJ) did not consider it necessary to determine the question whether the continuation of competing proceedings was an abuse of process, concluding that there was power to stay one or more competing class actions pursuant to the Court's inherent case management powers (see GetSwift Appeal at [121]ff; [136]). Relevantly, the Full Court also noted (at [33]) that the Court "would not condone such a complex, elaborate and expensive exercise in other cases when the issue of competing class actions needs to be dealt with" and that questions of the kind there raised "require to be dealt with less elaborately and more efficiently".
In obiter, the Full Court considered that: the mere existence of competing class actions does not give rise to an abuse of process (GetSwift Appeal at [145]-[148]; [154]); it is not an abuse of process for competing class actions to continue "if all but one are closed and overlap is eliminated" (GetSwift Appeal at [149]) or otherwise "where the duplication of group membership is eliminated" (GetSwift Appeal at [151]); the continuation of non-overlapping class actions is not an abuse (GetSwift Appeal at [153]); the commencement of a subsequent bona fide set of representative proceedings prior to the Court giving substantive directions in existing but overlapping representative proceedings does not of itself establish an abuse of process (GetSwift Appeal at [150]); prima facie, it is vexatious or oppressive to bring a second proceeding where an existing proceeding is on foot and the subject matter of those proceedings is the same or substantially overlaps, though it has also been recognised that the fact that the parties are not identical, or the relief sought is different, does not necessarily disentitle relief under this principle (GetSwift Appeal at [155]); and that an open class representative proceeding is not, or does not become, an abuse of process merely because a duplicative proceeding is subsequently commenced offering purportedly better costs and funding terms (GetSwift Appeal at [156]).

[10]

Differences between the competing representative proceedings in the present case

The differences between the competing representative proceedings presently before me (by reference to which one or other of the representative plaintiffs maintains that its proceeding has a juridical advantage or that others pose a juridical disadvantage) are broadly as to the relevant group members and the causes of action sought to be advanced on behalf of group members. Those differences in essence are: the inclusion of the unconscionable conduct claim in the Wigmans proceeding (not elsewhere reproduced - that being a conscious forensic decision on the part of the competing representative plaintiffs' lawyers) it being said by Ms Wigmans that this offers a different theory of loss and damage to market-based causation (T 13.20)); the inclusion of a claim in respect of shares acquired off-market or the acquisition by ADR's (first expressly raised in the Fernbrook proceeding though proposed to be mirrored elsewhere and said by Ms Wigmans, but disputed by other plaintiffs, already to be encompassed in her existing pleading); and the inclusion in the Wileypark proceeding of a claim arising out of the receipt by AMP of legal advice to the effect that its conduct was not lawful (a claim that Ms Wigmans again says, but which is also disputed, is already encompassed in her commercial list statement). (See below at [89]; [234]ff.)

[11]

Wigmans proceeding

The funder for the Wigmans proceeding is Burford Asia Pty Ltd (Burford), a subsidiary of Burford Capital UK Ltd (Burford Capital). Under the proposed funding terms, Burford is to: pay legal costs and disbursements; meet any adverse costs order; and provide security for costs. All of Quinn Emanuel's professional fees are to be met by Burford (thus, the firm is not at risk in respect of its costs) but Quinn Emanuel will not be entitled to any uplift on its professional fees in the event of a successful outcome (thus, it is not undertaking any part of the legal work on a conditional basis). On a successful resolution of the proceedings, Burford is to be paid (subject to Court approval) the legal costs and disbursements it has incurred, plus a maximum commission on a sliding scale, dependent on when resolution of the proceedings is achieved, of: 10% of the net resolution sum if the proceedings resolve on or before 30 June 2020; 15% of the net resolution sum if the proceedings resolve between 1 July 2020 and 30 June 2021; and 20% if the proceedings resolve after 1 July 2021. Burford will forego approximately $300,000 attributable to past interlocutory disputes (T 14.20).
Ms Wigmans notes that the proposed CFO in the Wigmans proceeding provides that the Court has ultimate power to fix the funder's commission in such lower amount than is proposed in the terms of the CFO that the Court considers reasonable and points to the acknowledgement by Burford that it contemplates that "in determining what is a reasonable funding commission, the Court may have regard to the commissions or alternative funding models reasonably and credibly proposed by other litigation funders in connection with the Wigmans Conduct Application" (see the affidavit affirmed 7 November 2018 of the managing director of Burford Capital, Mr Craig Arnott, at [38]).

[12]

Komlotex (and, if consolidated, Komlotex/Fernbrook) proceeding

For Komlotex, as adverted to above, Maurice Blackburn now proposes to conduct the proceeding without a litigation funder, on a "no win, no fee" basis. On a successful resolution of the proceedings (but provided the resolution sum exceeds an identified figure), Maurice Blackburn will (subject to Court approval): charge an uplift fee of 25% on its professional fees; and recover the costs of obtaining "after-the-event" (ATE) insurance (the cost of which it estimates at $1.25 million).
Further, as part of the arrangement reached with Fernbrook for consolidation with the Fernbrook proceeding, if the proceedings are consolidated: Maurice Blackburn will make payments of $250,000 each to Fernbrook's solicitors (Slater & Gordon) and to its funder (Therium Litigation Finance (Australia) Limited (Therium)) in the amount of $500,000; Fernbrook and Komlotex will apply for orders approving payment from the resolution sum of up to $350,000 in respect of legal costs and disbursements incurred by Slater & Gordon and/or Therium in conducting the Fernbrook proceeding prior to consolidation; and Maurice Blackburn will indemnify Therium against any adverse costs order made against Therium in the Fernbrook or Wigmans proceedings, and will indemnify Therium against any liability it has to indemnify Fernbrook (see affidavit of Fernbrook's solicitor, Mr Hardwick of 20 November 2018, referring to a Deed of Cooperation setting out those arrangements). Only the second of those amounts (i.e., the sum of up to $350,000), is to be the subject of an application for payment out of the ultimate resolution sum.

[13]

Wileypark proceeding

The funder for the Wileypark proceeding is IMF. Under the proposed funding terms, IMF is to: pay Phi Finney's reasonable disbursements (but not Phi Finney's professional fees - thus, Phi Finney will conduct the proceedings on a conditional basis); meet any adverse costs order; and provide any security for costs.
On a successful resolution of the proceeding, and subject to Court approval, IMF is to be entitled to payment of its expenses together with a maximum commission based on the lesser of: 10% of the net claim proceeds (the resolution sum net of costs); or 2.5 times the amount of "Multiple Expenses" (i.e., the disbursements paid by IMF) capped at $4.5 million (not inclusive of insurance costs); and Phi Finney will be entitled under the proposed funding terms to a 25% uplift on its professional fees incurred from 9 November 2018 (see the affidavit affirmed 12 November 2018 of Timothy Finney at [55]). The funding proposal imposes a cap on the amount of costs that the solicitors may recover from any resolution sum. The "Solicitor Costs Cap" is expressed as the higher of: the "Estimated Professional Fees Total" plus 10%, plus any Uplift Fee payable in respect of that amount or 10% of the Resolution Sum. (The IMF cap is described in submissions as a "hard cap", the Phi Finney as a soft cap (in the sense of being "not a cap") (see T 127).)
In oral submissions, Wileypark indicated that Phi Finney would not seek to recover any costs associated with bookbuilding (T 64.43ff) and that no cost of the multiplicity motions would be passed on to group members (T 71.35).

[14]

Georgiou proceeding

The funder for the Georgiou proceeding is Augusta. Under the proposed funding terms, Augusta is to: be responsible for paying legal costs and disbursements (up to an identified limit which can be varied); meet any adverse costs order; and provide any security for costs. 50% of Shine's professional fees for project investigation and 25% of Shine's professional fees for the proceeding (excluding project investigation) will be incurred on a conditional fee basis (see the affidavit of Vicky Antzoulatos sworn 6 November 2018 at p 3). Thus, Augusta will not pay Shine for a portion of its professional fees, but those amounts will be sought to be recovered by Shine out of the net claim proceeds on a successful resolution of the proceeding.
On a successful resolution of the proceeding, Augusta is to be entitled to repayment of the credit it has deployed in the proceeding (the "deployed credit"), together with a commission based on the lesser of: 8% of the net claim proceeds; 1.2 times the amount of "deployed credit" in the event the matter is resolved within 12 months after the proceeding was filed; 1.5 times the "deployed credit" in the event the matter is resolved within 12-24 months after the proceeding was filed; and 1.8 times the "deployed credit" in the event the matter is resolved more than 24 months after the proceeding was filed. Further, on a successful outcome of the proceedings, Shine is entitled to a 25% uplift on its professional fees that were incurred on a conditional basis (i.e., the 50% project investigation fees and 25% other professional fees).
Mr Georgiou's solicitor has deposed that the deployed credit cannot exceed $6,604,418 (being the "total funding to be provided") (see the affidavit sworn 6 November 2019 of Ms Antzoulatos at p 3), unless the funder agrees to a variation of that limit.

[15]

Abuse of process argument

It is convenient first to deal with Ms Wigmans' abuse of process argument, before considering her argument that the competing representative proceedings should be stayed, without undertaking any multifactorial analysis, by reference to the operation of case management principles; before turning, finally, to the multifactorial analysis that (contrary to her submissions), I propose to undertake of the comparative benefit to group members of the respective proceedings.
The relevant principles applicable in considering an application to stay a proceeding on the basis that its commencement (or continuation) constitutes an abuse of process are well known and are not in dispute between the parties. What is disputed is the application of those principles in the context of representative proceedings; in particular, where the legislature has contemplated the possibility of more than one proceeding (as is apparent from the relevant provisions in relation to representative proceedings in both the Federal Court Act and the Civil Procedure Act).
In summary, as Ms Wigmans notes, proceedings have been held to be an abuse of process where: the Court's processes are invoked for an illegitimate or improper purpose (Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34; Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42); the use of the Court's processes is unjustifiably oppressive to one of the parties or vexatious (Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55); and the use of the Court's processes in the manner contemplated would bring the administration of justice into disrepute (Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 (Walton v Gardiner)). As Ms Wigmans also notes, the categories of abuse of process are not closed (Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28; GetSwift Appeal (at [144]); Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48) and it has been recognised that the doctrine of abuse of process is fluid and adaptable (Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27; Jeffery and Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75; [2009] HCA 43).

[16]

Ms Wigmans' position

Ms Wigmans points to the following instances of abuse of process as having particular relevance in the circumstances of the present applications: the bringing of two proceedings where one will lie, such as where the plaintiff bringing the second proceedings may obtain complete relief in the first (Moore v Inglis (1976) 9 ALR 509; Henry v Henry (1996) 185 CLR 571; [1996] HCA 51 (Henry v Henry); Thirteenth Corp Pty Ltd v State [2006] FCA 979; (2006) 232 ALR 491; Lidden Composite Buyers Ltd (1996) 67 FCR 560; (1996) 139 ALR 549; Branir Pty Ltd v Wallco Pastoral Co Pty Ltd [2006] NTSC 70; (2006) 203 FLR 115; Commissioner of State Revenue v Aidlaw Pty Ltd (No 2) [2010] VSC 405); the commencement of proceedings for the predominant purpose of generating income for a legal practitioner (Treasury Wine Estates Ltd v Melbourne City Investments Pty Ltd (2014) 45 VR 585; [2014] VSCA 351; Melbourne City Investments v Leighton Holdings Ltd [2015] VSCA 235) or generating income for a litigation funder (Melbourne City Investments Pty Ltd v Myer Holdings Ltd (2017) 53 VR 709; [2017] VSCA 187 (Melbourne City Investments v Myer)); and the commencement of ordinary inter partes proceedings by a person who has not opted out of a representative proceeding (when the opt-out time has passed) against the same defendant and dealing with substantially the same subject matter as the representative proceeding (Oliver v Commonwealth Bank of Australia (No 2) (2012) 205 FCR 540; [2012] FCA 755 (Oliver v CBA)).
Ms Wigmans identifies, in particular, the following characteristics of representative proceedings: that the proper purpose of such representative proceedings is not limited to the vindication of the substantive rights of the plaintiff, but also involves "laying the groundwork" for the vindication of the substantive rights of the group members, through the determination of common questions; that, where a representative proceeding has been commenced, the substantive rights of a group member may be vindicated in that proceeding without the need for the group member to commence its own subsequent proceeding; and that a representative proceeding is, by its very nature, a "commercial enterprise" through which the lead plaintiff, group members, solicitors and (if there is one) litigation funder advance, by use of the Court's processes, the shared purpose of vindicating group members' rights in order to obtain some financial benefit for each of them (referring to GetSwift at [341]-[343]; [17]-[18])).

[17]

Competing representative plaintiffs' position

The competing representative plaintiffs argue that Ms Wigmans' abuse of process contentions are contrary to authority (having been rejected both as a matter of principle and as a matter of public policy), emphasising the observations of the Full Court in GetSwift Appeal at [279] (set out above at [53]), and submitting that, consistent with earlier authority, no advantage should flow to the first-filed proceeding, as that would encourage a rush to the courthouse (see in this regard the observations of Murphy J in Petersen Superannuation Fund Pty Ltd v Bank of Queensland Ltd [2017] FCA 699 (Petersen)).
There was much debate as to whether the extended claim periods are likely to yield productive claims for any group members, or materially to increase aggregate group member claims (see for example Mr Georgiou's submissions at [36]; Komlotex' submissions at [16] and submissions in reply at [50]), which I consider in due course (see, for example, [247]ff below). Similarly, there was debate as to the proposition that the Wigmans proceeding has any juridical advantage in terms of the causes of action pleaded, which I consider later in these reasons (see [234]ff below).
The competing representative plaintiffs argue that the observations in GetSwift Appeal were not made in a circumstance divorced from any consideration of whether a second in time proceeding might be an abuse of process; rather, the "first in time" factor was of no weight because the second in time proceeding is not an abuse of process (see the analysis in GetSwift Appeal at [135]-[157]) and that, were it otherwise, the question of who was first could not be ignored and hence the two issues are interrelated (see for example the Komlotex submissions at [14]; T 32ff).
Reference is made to the reasoning of the Full Court in GetSwift Appeal, and in particular, the observations that the legislation: specifically contemplates the possibility of multiplicity of proceedings by allowing a representative party to bring proceedings on behalf of "some or all" group members and because it allows group members to opt out and pursue their own individual or representative claims; and does not evince a purpose to restrict or prevent claims involving a common issue being the subject of more than one class action, particularly given that one of the key mischiefs which the statutory regimes were enacted to prevent was a respondent facing voluminous individual claims (a far less efficient outcome); as well as to the observations that the commencement of a duplicative class action proceeding does not of itself establish any vexation, oppression or an abuse of process because the lead representatives are not the same parties, and the group members (who are not parties) "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".

[18]

AMP's position

While AMP does not make any submissions expressly in response to the abuse of process argument raised by Ms Wigmans, it is inherent in AMP's argument that only one proceeding should be permitted to continue and that AMP maintains that it would be an abuse of process for all proceedings to continue through to a contested hearing.

[19]

Determination of the abuse of process argument

In Wileypark v AMP, Allsop CJ (with whom Middleton and Beach JJ agreed) said the following (at [17]-[18]): The decision as to how to manage competing class actions is quintessentially a case management issue to be answered by reference to all the circumstances at hand. Such circumstances will involve the kinds of considerations to which I have already referred, including the definition of the classes, whether they are open or closed, the issues raised in the causes of action pleaded, the apparent quality of the pleading, the terms of any funding agreement and any other surrounding and relevant circumstances. The timing of any such decision will likewise depend on all the circumstances. Ordinarily, little weight should be given to the factor of reaching the Court first in circumstances where all courts should be astute to protect the best interests of all group members, not the desires of the promoters and managers of the litigation (in particular, the commercial funders and the lawyers) to be first to the filing gate. Beyond that broad recognition of the position of those involved, there are specific dangers involved in giving weight to first filing. It involves an encouragement for hasty preparation and lack of mature reflection. In some cases, mature reflection enables it to be appreciated that there is a need for preliminary discovery to assess the strength of a possible case. Further, commercial decisions about funding made in haste to get in first may interfere with decisions about the interests of group members. Haste may also lead to less focused pleading and preliminary analysis which may undermine, not reinforce, the policy objectives of modern dispute resolution and court statutes. Using such a first-is-best approach may deny the Court the ability to make a considered and balanced case management decision as to which action or actions proceed conformably with the interests of all group members and any properly considered prejudice of the respondent. This is not to countenance delay; it is to deprecate any approach where any real weight is given to the first-in-best-dressed approach for those promoting and managing this kind of litigation.
Further, at [23], his Honour said: ... What does need to happen, however, is that a careful and balanced case management analysis be made as to which one or more of the five proceedings go ahead to resolve the issue for the lead plaintiff or plaintiffs and group members, and on what terms. This is an important decision, not without its commercial and professional aspects. To this question the interests of group members are paramount. At the risk of criticism for repetition, it should be obvious that this important decision, so vital to group members, should not be forestalled by an anti-suit injunction seeking to protect the first suit filed.

[20]

Case management principles - Ms Wigmans' "first-filed" argument that there should be no multifactorial analysis

As to the second basis on which Ms Wigmans seeks a stay of the competing proceedings (namely, by invoking the general power the Court has to control its own process), Ms Wigmans points to the observations by the Full Court that this power extends to ordering a permanent stay "as the occasion demands", not constrained by any necessity for the case to fit into a specific category (see GetSwift Appeal at [125]-[126]); and (at [122]) that the power is enlivened where multiple class actions brought primarily against the same respondent, in respect of substantially the same claims, and on behalf of the same group members, are likely to: … (a) involve increased use of judicial and Court resources; (b) move more slowly and less efficiently through the interlocutory stages; (c) incur increased legal costs on the applicants' side which (if the cases are successful) will ultimately be paid by group members out of the same pool of available settlement or judgment monies; and (d) incur increased legal costs on the respondent's side through the requirement to defend three proceedings rather than one....

[21]

Ms Wigmans' position

In a similar vein to the submissions made by her as to abuse of process, Ms Wigmans submits that, in determining which proceeding(s) should be stayed and which should be permitted to continue, and having regard to the overriding purpose in s 56 of the Civil Procedure Act, the Court should ordinarily favour the first-filed proceeding where: the subsequent proceedings offer no juridical advantage to the first-filed proceeding; the first-filed proceeding is more progressed; the continuation of the subsequent proceedings would interfere with and impede the progress of the first-filed proceeding; and legitimate concerns of group members may adequately be addressed through the ordinary interlocutory mechanisms of Pt 10 of the Civil Procedure Act. It is submitted that such an approach is preferable, from a case management perspective, to inviting and conducting a "complex, expensive and unseemly auction process".
Ms Wigmans argues that there are good policy reasons for the adoption of a clear cut approach that the first in time, regularly commenced, proceeding is to prevail, namely to avoid the need to speculate about the future conduct of the proceedings at an early stage on information which will be incomplete at best; to promote the just, quick and cheap resolution of the proceedings by avoiding the lengthy delay that applications of the present kind inevitably otherwise involve; to promote certainty for representative plaintiffs, their lawyers and funders at the time of commencement of a representative proceeding; and to maximise the period of recovery for group members where pleaded claims are subject to a statute of limitations.

[22]

Competing representative plaintiffs' position

Broadly speaking, all of the competing representative plaintiffs submit that Ms Wigmans' alternative argument (that the Wigmans proceeding should be preferred on case management grounds because of a principle favouring the first-filed proceeding) should be rejected. It is submitted that such an argument does not strike an appropriate balance between the important overriding purpose mandated under the Civil Procedure Act for the just, quick and cheap resolution of disputes and the Court's "onerous" protective and supervisory role in relation to group member interests.
As to the case management procedures relied upon by Ms Wigmans (see [56]-[58] of Ms Wigmans' submissions) in this regard, concern is raised by the competing representative plaintiffs as to the limitations of such process (see, for example, Fernbrook's reply submissions). For example, it is submitted by Wileypark that, if it were to eventuate that incentives regarding the incurring, and level, of legal costs were in fact having an inappropriate influence on the conduct of proceedings, by the time this became evident it would be unlikely to be feasible to install a different funding structure or a different solicitor and funder, without undue expense and delay.

[23]

Determination

I have no difficulty with the proposition that the issue of multiplicity of proceedings should be approached by reference to case management principles (and that in so doing the overriding purpose mandated by s 56 of the Civil Procedure Act must be steadfastly borne in mind). What I do not accept is that the present applications should be determined without consideration of the factors articulated as being of relevance in cases such as the GetSwift proceedings. In this context, Fernbrook's submission (that, if Ms Wigmans' submission on abuse of process were to be a correct statement of the law then the other proceedings should not have been commenced (or at least not on an open class basis), in which case there would be no alternative funding models proposed by other solicitors and funders before the Court at the time a funding commission is set; and hence acceptance of Ms Wigmans' submission would reduce the competition amongst solicitors and funders which is beneficial to group members) has obvious force.
To accept a principle favouring the first in time proceeding would, in my opinion, fail to give weight to the admonition (on understandable policy grounds) in GetSwift Appeal against encouragement of a "first mover" advantage. Rather, I consider that the circumstances in which the respective proceedings were commenced should be taken into account as part of the suite of factors to be considered in determining what is in the overall best interests of group members (having regard also to an outcome what will not occasion unfairness to the defendant in the particular case; here, AMP).

[24]

Consolidation motion

It is convenient at this point to deal with the consolidated motion. The circumstances leading to the consolidation application are outlined in the affidavit affirmed 21 November 2018 of Fernbrook's solicitor, Mr Hardwick, and [7] to [10] of the affidavit sworn 22 November 2018 of Komlotex' solicitor, Mr Watson. As noted earlier, Mr Hardwick has deposed that in his opinion the terms on which the solicitors for Komlotex propose to conduct the proceeding offer the best likely result for group members. Fernbrook has agreed to retain Maurice Blackburn if the two proceedings are consolidated. Fernbrook submits that in those circumstances its solicitors and funder have acted responsibly in reaching an accommodation with Komlotex and its solicitors. Fernbrook submits that neither AMP nor other group members will be prejudiced by the consolidation. It is noted that in GetSwift Appeal the Full Court spoke approvingly of consolidation of competing class actions (see at [46]-[51]; [161]; 274), particularly where there will be only one set of applicant's solicitors going forward.
There was no opposition by AMP to the consolidation of the two proceedings.
Some criticism is made by others of the representative plaintiffs as to the manner in which the costs of the Fernbrook proceeding are proposed to be dealt with under the funding arrangements proposed by Komlotex. Mr Georgiou, for example, submits that the consolidation provides no substantial benefit to the Court (as the Court is still required to adjudicate in respect of the remaining four competing class actions) and that the proposed payments to Slater & Gordon and Therium do not advance the interests of group members. It is submitted that the proposal to seek to recover an amount for Slater & Gordon's costs on a successful resolution can only be to the disadvantage of the group members; and that there is no clear explanation on the evidence as to why Slater & Gordon, Therium and Maurice Blackburn entered into the relevant arrangement.
In that regard, Fernbrook submits that the commercial agreement reflected in Maurice Blackburn's commitment to pay $500,000 toward Fernbrook's pre-consolidation costs, in the event of a successful resolution of the proceeding, is to the advantage of group members in that it reduces the amount of Fernbrook's pre-consolidation costs for which approval for payment out of the resolution sum may be sought. Fernbrook says that pre-consolidation costs becoming costs in the consolidated proceeding is an ordinary aspect of consolidation of proceedings. It is noted that whether any amount of Fernbrook's pre-consolidation costs is approved for payment out of a resolution sum is a matter the Court would consider at the time of settlement approval. Fernbrook, thus, says that the proposal that on consolidation of the Fernbrook and Komlotex proceedings, a sum in respect of Fernbrook's pre-consolidation costs will be paid from the resolution sum (beyond the amount that will be paid by Maurice Blackburn) is no reason to stay the Fernbrook proceeding at this stage or not to grant the application to consolidate it with the Komlotex proceeding. (Reference is here made to the situation with which Merkel J dealt in Johnson Tiles.)

[25]

Determination as to consolidation

I consider that there should be an order for the consolidation of the Komlotex and Fernbrook proceedings. I see no relevant prejudice to AMP by an order for consolidation (and there was no opposition by AMP to such an order). Nor do I see any relevant prejudice to group members in circumstances where the issue of the pre-consolidation costs of the separate Fernbrook proceeding will fall to be dealt with in due course as part of the approval of any settlement or in the final judgment after a contested hearing. I will, therefore, make the consolidation order as sought.

[26]

Multi-factorial analysis

I have outlined already Ms Wigmans' position that the issue as to the multiplicity of suits should not be resolved by way of a multi-factorial "GetSwift-style" analysis. While I consider there to be substance in the complaints made by Ms Wigmans as to the some of the aspects of such an exercise (at least as it has been carried out in the present case), I do not accept that undertaking such an exercise is not here warranted; nor do I accept that it is inimical to the overriding purpose mandated in the Civil Procedure Act. True it is that there has been delay (and inevitable cost) occasioned by the preparation for, and hearing of, the multiplicity motions. However, even if the abuse of process/"first in time" case management submissions put for Ms Wigmans were to have been adopted, it would still have been necessary (on Ms Wigmans' articulation of the principles) to carry out an analysis of the respective proceedings in order to identify any relevant juridical advantage or juridical disadvantage (since on her argument it is only where the subsequent proceedings are essentially duplicative and offer no juridical advantage that there is an abuse of process by reason of their commencement and/or continuation).
I have broadly summarised Ms Wigmans' position in relation to any such analysis if, contrary to her submissions, were such an exercise to be undertaken. Before turning to a consideration of the factors that have been recognised as being of relevance on such an exercise (and the parties' submissions in that regard), it is convenient at this stage briefly to summarise the position of the other representative plaintiffs on the issue as to how to deal with the multiplicity of proceedings.
Komlotex submits that the similarities between the circumstances now facing the Court and those recently considered by the Full Court in GetSwift Appeal are such that, consistently with the Full Court's reasons, a stay of all but one of the competing proceedings is the appropriate remedial response to the current multiplicity issue; and that (assuming the consolidation motion to be successful) the consolidated Komlotex/Fernbrook proceeding should be found to be the preferred vehicle for advancing group member claims when regard is had to the Full Court's observations as to the preferred case selection process (in particular, its primary focus on which vehicle is most likely to maximise group member recoveries).

[27]

Relevant factors

At the outset, it is worth setting out the factors to which Lee J had regard in comparing the competing proceedings in GetSwift (though the Court is not confined in the factors to which it may have regard in this exercise and not all of those considered by his Honour may here be relevant). At [169], his Honour identified those factors, as relied upon by the parties in those proceedings, as follows (in some cases by reference to the judgment of Beach J in Bellamy's): (a) the experience of the legal practitioners involved in each of the actions (see Bellamy's at [71(a)]); (b) the resources made available by each firm of solicitors and their accessibility to clients (see Bellamy's at [71(d)]); (c) the state of preparation of each proceeding (see Bellamy's at [71(e)]); (d) the position offered by each funder on security for costs and the resources available to fund the costs of the applicant and adverse costs (so as to provide certainty for group members) (see Bellamy's at [71(h)], [74]); (e) the respective merits of the common issue cases as pleaded or as foreshadowed (including the contention the Perera Proceeding and Webb Proceeding are subsets of the McTaggart Proceeding); (f) the respective strength of the individual cases of the representative applicants; (g) the decision or choice of some group members to enter into funding agreements (in the case of the Perera Funded GMs and the McTaggart Funded GMs) and retainer agreements (in the case of the Perera Funded GMs); (h) the relative numbers of the Perera Funded GMs and the McTaggart Funded GMs (and the absence of any funded Webb group members) (see Bellamy's at [71(f)]); (i) the lack of a contractual deadlock provision in the Webb Proceeding funding arrangements and the alleged existence of a 'moral hazard'; (j) the estimated costs deposed to by each of the applicants' solicitors (see Bellamy's at [71(b)]); (k) proposals made or adopted by the applicants to reduce and control costs, including 'caps'; (l) proposals made or adopted by the applicants to reduce and control expert costs; (m) public policy issues bearing upon Mr Webb's position; (n) the comparative consequences of a permanent stay, closure or declassing order in each proceeding would have on those affected by such an order.
Two considerations that his Honour expressly omitted from that list were: first, the common fund structure proposed by each of the applicants (which his Honour considered an important issue but dealt with later in his reasons) (see [170]); and, second, the order in which the proceedings were commenced (which his Honour considered was not to be given any weight). His Honour there identified the deleterious consequences from a public policy standpoint "if 'first in time' was a consideration in and of itself" as including, not only that it would encourage a race to the Registry but also that it would: … (a) potentially reward and serve to encourage the analytical work I described at [11]-[12] above to be performed hastily; (b) force decisions to be made as to whether a case should proceed (and if so, how) under pressure and without mature reflection; (c) require funding terms to be negotiated against the metaphorical background noise of a 'tick-tock'; (d) likely result in poorly thought through originating applications and pleadings; and (e) undermine the policy objectives of the Civil Dispute Resolution Act 2011 (Cth) and pose a real risk that insufficient attention would be given by an applicant to making a sincere and genuine attempt to resolve the dispute prior to commencement.

[28]

Funding proposals, costs estimates and net hypothetical return to group members
I address this factor first, noting the emphasis placed by the Full Court in GetSwift Appeal on the identification of the proceeding with a funding and costs model likely "best [to] motivate the applicant's solicitor and funder to work assiduously to achieve the best outcome for the applicant and group members and to take reasonable risks in that regard" (see at [277]); the admonition against focus on the lowest possible costs and funding charges in any selection process (the Full Court having cautioned at [276] that "undue focus" to lower costs and funding charges is likely to promote a "'rush to the bottom' by funders and solicitors keen to win the tender"); and the emphasis by the Full Court that the single most important determinant of the net recovery achieved by group members is not the quantum of legal costs but the amount of the settlement or judgment achieved (at [278]).
I have already summarised the funding model proposals put forward by the competing representative plaintiffs (see [55]ff). Below, I set out the advantages perceived to arise from (and, conversely, the criticisms raised against) each of the different funding models, as outlined in the respective written submissions and articulated in oral submissions; and consider the application of those models in the present case (by reference to the estimated costs of the respective proceedings).
First, however, I address the admissibility of the two expert reports relied upon by Ms Wigmans, namely, the two reports prepared by Professor Michael Perino: an initial report of 6 November 2018 and a supplementary report of 22 November 2018 (after Professor Perino had been provided with additional information regarding the competing proposals). Objection was taken by Wileypark at the hearing of the present applications to the admission of those reports into evidence and they were only provisionally admitted on the basis that I indicated I would rule on that issue in my final reasons. (Even if admitted, the competing representative plaintiffs generally submit that little weight should be placed on them.)
For the reasons that follow, I am of the view that Professor Perino's reports should not be admitted into evidence but that, even if they were, they would not have affected the conclusions I have reached as to which of the competing representative proceedings should be permitted to proceed.

[29]

Professor Perino's reports

Ms Wigmans argues that this evidence supports the conclusion that the funding proposal in the Wigmans proceeding best advances the interest of group members, because the incentives it creates best align the interests of group members and those who conduct and fund the proceeding on their behalf. In Professor Perino's words (see [1.5] of the initial report) the CFO proposal submitted by Ms Wigmans "promises to create the best incentives because it is the only proposal based on a rising scale that is effectively tied to the amount recovered for the class".
In order to consider Wileypark's objection to the two Perino reports, it is necessary to consider in some detail the content of the reports in question.
The initial report was written with the assistance of Professor Silver. Both Professor Perino and Professor Silver are academics who have written in the area of class action litigation in the United States; and they together collaborated on an empirical study of fee awards in securities fraud class actions (see [3.3] of the initial report). Both have served as expert witnesses "in many class actions in the United States" (see [3.4]). It is not apparent from the reports that either has conducted class action litigation (or securities class action litigation, for that matter) as a practitioner. Professor Perino makes clear that his expertise involves primarily United States class actions "which operate under different procedural rules" than those in this country. Wileypark emphasises that there is no evidence that Professor Perino has any experience in the actual conduct of class action proceedings - his experience being in "studies of class actions" (see T 52) and as a professional expert witness. Wileypark also emphasises that such experience as Professor Perino has is in relation to US class actions, which operate in a different litigious regime.
Professor Perino was asked to opine, with respect to the economic incentives on litigation funders, representative plaintiffs and the plaintiffs lawyers, as to which of the following four different funding models better advances the interest of group members (see [4.1.1]): (a) a percentage of the settlement sum, where the percentage increases over time (staged percentage); (b) a percentage of the settlement sum which is fixed (fixed percentage or flat percentage); (c) a multiple of costs incurred, where the multiple of costs increases over time (staged multiple); or (d) a multiple of costs incurred, where the multiple is fixed (fixed multiple)?

[30]

Determination as to admissibility of Professor Perino's reports

To fall within the exception under s 79(1) of the Evidence Act 1995 (NSW) (Evidence Act), evidence must satisfy two conditions: first, the witness must have specialised knowledge based on his or her training, study or experience (Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 at [32] (Dasreef); Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29 at [23]); and, second, the opinion must be wholly or substantially based on that knowledge (Dasreef at [32]; Honeysett at [23]-[24]). Relevantly, in Dasreef, the plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), quoting Heydon JA, as his Honour then was, in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 at [85] (Makita), said (at [37]) that "the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study, or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded". Their Honours later observed that "[a] failure to demonstrate that an opinion expressed by a witness is based on the witness's specialised knowledge based on training, study or experience is a matter that goes to the admissibility of the evidence, not its weight" (at [42]).
In Makita, Heydon JA referred (at [67]) to the need for an expert fully to expose the reasoning relied on and went on (at [71]) to say that "[e]xamining the substance of an opinion cannot be carried out without knowing the essential integers underlying it" and (at [80]) cited Anderson J in Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370 (at 390): Expert opinion is to be judged like any other evidence. It must be comprehensible and reach conclusions that are rationally based. The process of inference that leads to the conclusions must be stated or revealed in a way that enables the conclusions to be tested and a judgment made about the reliability of them.
Among other authority, his Honour cited (at [69]) the following remarks of Lawton LJ in R v Turner [1975] QB 834 (at 840): … Before a court can assess the value of an opinion it must know the facts upon which it is based. If the expert has been misinformed about the facts or has taken irrelevant facts into consideration or has omitted to consider relevant ones, the opinion is likely to be valueless. In our judgment, counsel calling an expert should in examination in chief ask his witness to state the facts upon which his opinion is based. It is wrong to leave the other side to elicit the facts by cross-examination.

[31]

Claimed advantages (and criticisms) of the respective funding models

[32]

Wigmans funding model - staged percentage model tied to duration of proceeding

Ms Wigmans argues that her staged percentage model, with no caps placed on the funder's commission and the marginal return for Burford increasing as the case progresses, provides a stronger financial incentive for the pursuit of the maximum value of group members' claims (rather than settlement of those claims "quickly and cheaply") than does any funding proposal in the competing proceedings. In particular, criticism is made by Ms Wigmans of a fixed percentage model under which it is said that the funder's marginal return on effort diminishes as the case progresses (and as the maximum claim value approaches).
Ms Wigmans argues that the staged increase in the commission as the litigation progresses incentivises the funder to "stay the distance"; and that, as the solicitors under this model do not bear any risk of loss in the event of an unsuccessful outcome (as their professional fees are paid by the funder as and when those fees are due), the solicitors similarly have no financial incentive to prefer an early and cheap settlement. Ms Wigmans maintains that under her proposed funding model there is a higher degree of control in the hands of the plaintiff and away from the funder (see T 13.148; Mr Scattini's affidavit affirmed 7 November 2018 at [49]).
(I interpose here to note that the Wigmans funding model is not the staged percentage model endorsed by Professor Perino because the increases occur as the duration of the litigation increases rather than being a stepped percentage of greater recovery sums where increases occur by reference to the ultimate resolution sum.)
Criticisms raised by others of the representative plaintiffs in respect of this funding model are that the time-based increase in commission provides a strong financial incentive for a funder to defer settlement (see T 45.18 - Komlotex' oral submissions) and hence gives rise to a real potential conflict between the commercial interests of the funder and group members' interests; and, insofar as the solicitors' costs are paid by the funder throughout the litigation, it creates no incentive on the solicitors to minimise costs or keep to their budgets "as they will be paid anyway for as long as the litigation goes on" and hence creates the incentive for solicitors to "overservice" or prolong the litigation.

[33]

Wileypark/Georgiou proceedings model - fixed percentage/multiple of expenses commission

In both the Wileypark proceeding and the Georgiou proceeding it is proposed to adopt a similar funding model (though with differences between the two), namely a structure under which the funder will be remunerated by a commission calculated as the lesser of a percentage of the net claim proceeds and a multiple of the expenses (or "deployed credit") incurred by it (in the Wileypark proceedings there is a cap on the amount recoverable by the funder on the multiple of expenses amount). In each case, the solicitors bear the risk of their professional fees (to be recovered out of the resolution sum, with a 25% uplift, though under the Wileypark model this is subject to the solicitor costs cap). (The adoption of the "lesser of" formula is identified as a mechanism to prevent a "windfall" to the funder - see Mr Georgiou's submissions.) The fixed sums under these funding models are said to give certainty to the representative plaintiffs and the group members.
Wileypark emphasises that its funding terms are unique in setting a cap on the calculation of commission payable both to the funder and to the solicitors. In particular, the advantage of the solicitor costs cap, as emphasised by Wileypark, is that it has flexibility which is tied to proportionate outcomes. It is said that it operates as an incentive to the solicitors "to dig in deeper and for longer" to achieve the highest possible settlement or judgment sum (and that the additional layer - of 10% of any judgment or settlement sum, if that be higher than the cap - is intended to prevent any disincentive to incur additional cost once the costs estimate is or would with that additional cost be exceeded).
The contrary argument is that a capped funding and legal fee structure creates a financial incentive on the funder and solicitors to settle the proceeding "quickly and cheaply", which in turn creates a conflict of interest between the funder/solicitors on the one hand and the interests of the group members on the other. So, for example, it is said that the funder has no financial incentive in pursuing a resolution sum any greater than the "Multiple Expenses" cap because that is the level at which it may recover its maximum commission and it will take no additional share of any recovery thereafter (see, for example, Komlotex' submissions at T 45). Similarly, it is submitted that a solicitor costs cap creates a disincentive upon the solicitors to incur costs unless the deployment of those costs is likely to result in an increase to the resolution sum that will generate an extra amount for the solicitors (see Wigmans' submissions at [108]ff).

[34]

Komlotex/Fernbrook proceeding model - "no win, no fee"

As outlined above, in the Komlotex proceeding a "no win, no fee" funding model (without a third party funder and hence without any separate funding commission) is now put forward as the preferable funding model.
While it appears to be accepted (see Wigmans' submissions, for example) that such a model provides a financial incentive for the solicitors to achieve a settlement at least equal to the uplift entitlement threshold, that model is criticised on the basis that this is a weak financial incentive (that does not adequately align the solicitors' interests with group members' interests) on the basis that the incentive diminishes once the threshold is reached. Furthermore, it is said the solicitors are financially disincentivised to spend on disbursements (such as counsels' fees) because such expenditure represents risk without any prospect of reward (the uplift being limited to the professional fees; with recovery of disbursements at a dollar for dollar rate.
Furthermore, Ms Wigmans raised policy concerns (and the precedent that may here be set for future cases) attached to adopting a "no win, no fee" model, namely (see submissions in reply at [32]): There is a risk of substantial market distortion if a funded action can be commenced, with historically low funding rates, only to be stayed in favour of an action commenced much later in which the firm of solicitors, having lost the support of its litigation funder, offers to conduct the case on a 'no win no fee' basis. The Court should not presume, on the basis of purported cost comparisons, that a no win no fee action is superior to a funded action. It has been recognised in the literature that litigation funders have enhanced access to justice in levelling the playing field in terms of resources between class action plaintiffs and defendants.
(Pausing there, Komlotex cavils, among other things, with the suggestion that it has "lost the support of its litigation funder", pointing to the evidence as to the consideration given by its solicitors to the best form of funding model and the decision reached in that regard to proceed without a third party funder.)
Similar to the criticism raised in this regard of the Wileypark/Georgiou funding models, the "no win, no fee" structure is criticised on the basis that it creates no incentive on the solicitors to "keep to their budgets" in terms of the professional work carried out by the lawyers engaged on the matter or in terms of how many lawyers are engaged on the matter. In this regard, the spectre is invoked of cashflow demands (either as to receipt of income or as to the avoidance of incurring unnecessary disbursements) having the potential to give rise to a conflict or interest or to affect the solicitors' perception of the desirability of settlement for particular sums and/or at particular times. (In this regard, Mr Georgiou further says that a model where a funder pays solicitors' costs implements a further level of cost control, in the form of the funder's oversight and supervision, that does not exist where proceedings are conducted on a "no win, no fee" basis.)

[35]

Net hypothetical return to members

Ms Wigmans argues that, in comparing the competing fund proposals, placing "undue focus" upon costs and funding charges will distract from the more important question of which funding proposal is likely to result in the largest settlement or judgment; and says that the "cheapest" funding proposal is not necessarily the best proposal.
Ms Wigmans further argues that speculation at this stage of the proceedings as to the precise quantum of funding costs is moot, insofar as various of the funding proposals contemplate seeking a CFO that expressly subjects the funder's commission to Court approval; that an attempt to estimate likely funding costs by reference to headline funding rates is a superficial exercise (referring to what was said by Lee J in GetSwift at [195] as to the need to identify the aggregate amount to be paid to the funder); that there is added complexity where funding costs are expressed as a multiple of legal costs; that there is uncertainty as to the ultimate cost of ATE insurance); and points to the inherent unreliability in costs estimates having regard to the notorious difficulty of estimating with any precision such costs and the inutility of comparing costs estimates in the absence of common assumptions about the conduct of the case. For example, Ms Wigmans points to her solicitors' proposal to use another firm to provide administrative services at "a cost much lower" than lawyers' hourly rates (see T 14.35).
Wileypark similarly (by reference to the costs approved in other class action proceedings to which reference is made in Mr Watson's affidavit sworn 22 November 2018 at 32 - namely, Kirby v Centro Properties Ltd (No 6) [2012] FCA 650 (Centro)) points to the difficulty in estimating costs at this stage, noting that the costs approved in Centro were materially higher than Maurice Blackburn's budget in the present Komlotex/Fernbrook proceeding.
Thus, Ms Wigmans submits that no weight should be placed on the comparative tables advanced by other representative plaintiffs (which seek to compare net returns to group members across a range of resolution outcomes). Ms Wigmans says that, aside from their essentially speculative nature, the focus should be on which action is most likely to achieve the largest settlement or judgment (rather than on comparing costs which she submits are "relatively at the margins in a high stakes case like this one").

[36]

CFOs

The representative plaintiffs in each of the competing representative proceedings (other than the proposed consolidated Komlotex/Fernbrook proceeding) have indicated that they will seek a CFO. It was, however, made clear in oral submissions by various of the representative plaintiffs that they intended to continue the proceedings irrespective of whether such an order is made and/or would defer an application for such an order until a later date. For example, Wileypark indicated that it would defer an application for a CFO to the time an order is made to approve settlement or judgment (see T 64), arguing that this distinguishes its position from that of Ms Wigmans; and that it will progress the matter irrespective of the CFO issue. Wileypark proffered undertakings during the course of the hearing (T 64.26-45) in the following terms: Wileypark undertakes That [Phi Finney] will not seek to recover from any applicant or any group members part or future, at any time, any costs associated with book building. (noting that such costs are not recoverable by IMF in any event) [and] Of the legal costs incurred by [Phi Finney] associated with the transfer and multiplicity processes, [Phi Finney] undertakes not to seek to recover those costs up to the sum of $300,000.
Mr Georgiou takes a similar position (see at T 83ff), namely that a CFO is not sought at this stage; but that the funding terms annexed to his notice of motion are those on which, at an appropriate time, he will seek such an order, depending on the outcome of the appeals in and where the power of the Court to make CFOs is being challenged; and that he is not "wedded" to an ATE policy or deed of indemnity and, if chosen as the vehicle to proceed, he will deal promptly with the question of security for costs.
The terms of the CFO sought by Ms Wigmans are contained in the application filed on 24 October 2018. It is submitted by Ms Wigmans that there is nothing unusual about the terms or structure of the CFO or funding terms sought by Ms Wigmans.
In this regard, Wileypark submits that in circumstances where Burford (unlike IMF and Augusta) has not unequivocally stated that it is content to defer any CFO application until after resolution of the Wigmans proceeding has occurred (by settlement or judgment), there is a risk that the progress of the Wigmans proceeding will inevitably be delayed by the issue which has arisen as to the power of the Court to make CFOs and the constitutional validity thereof. It is submitted that the Wileypark proceeding will not be so delayed because IMF has made it clear that it is content to have the application for a CFO dealt with after settlement or judgment (referring to Mr Saker's affidavit at [64]). Wileypark argues that this is a substantial factor against selecting the Wigmans proceeding as the proceeding which should proceed as an open class proceeding. (It also argues that, as a consequence of that likely delay the funding fee referred to by Mr Scattini in his affidavit affirmed 7 November 2018 "is likely to be pushed towards the higher end of the range" and very likely to end up in the 17.5% to 20% range; with a funding fee, if no CFO is granted, of either 22% or 25%. It is submitted that these are very large funding fees, likely to amount to windfalls to Burford (see submissions at [58]).)

[37]

Costs to date

Before turning to other factors, I should note that Wileypark has raised as a relevant matter to be taken into account the level of "sunk costs" to date. It is said that by 8 November 2018 approximately 1,350 professional fee hours had already been expended on the Wileypark proceeding by Phi Finney and that many hours had also been expended by counsel (referring to Mr Finney's affidavit affirmed 12 November 2018 at [42] and [46]; affidavit affirmed 28 November 2018 at [18]; where Mr Finney deposes to professional fee hours totalling some 1,345 hours). Wileypark says that these "sunk costs" should not lightly be, in effect, thrown away.
As to any suggestion by Wileypark that the Wileypark proceeding should be preferred on the basis that, unless that proceeding is permitted to proceed, there will be wasted costs, Mr Georgiou points out that it is a factor that applies equally to all the proceedings (and criticises the expenditure of significant costs amending the pleadings in the Wileypark proceeding when further substantial amendments were made after that amended pleading was drafted).

[38]

Conclusion as to first factor

Insofar as weight is to be placed on the incentives/disincentives created by particular funding models on solicitors and/or funders working assiduously to achieve the best possible outcome for group members, the difficulty is that many of the incentives identified could, from a different perspective, equally be seen as disincentives. For example, if commission increases the longer a case runs, then there is an obvious incentive to delay ultimate resolution of the case; just as there is an obvious incentive to perform additional work if commission (or fees) are calculated on hourly rates and, hence, a disincentive to conduct the litigation efficiently and cost-effectively (albeit that those factors might produce a higher resolution sum). One would need a way to measure the potential increase in the settlement sum referrable to duration/additional costs against the downsides of that delay and additional costs.
The most likely incentive for a funder/litigator to press for a higher settlement might intuitively be said to be the calculation of a commission based on an increasing percentage of settlement or resolution sums likely to be achieved, but whether those sums would necessarily or even probably increase the longer a case runs is something with which I have some doubts and which cannot here be tested. That would provide a disincentive against early settlement but there is nothing to say that a higher settlement might not equally be able to be achieved at an earlier point of the settlement/resolution sum.
In a sense, I consider that the "no win, no fee" model balances the potential incentives and disincentives by putting the risk of the litigation squarely with the solicitors but incentivising additional work (which might be likely to produce a higher settlement sum) by reference to an uplift on fees to be achieved only when the stipulated threshold for a resolution sum is achieved. That said, insofar as it ties remuneration to hourly rates one can also see the creation of an incentive to perform additional (and perhaps unnecessary) work that might not objectively produce any higher net return for group numbers.
Similarly, the capped feature of the Wileypark and Georgiou funding models can be viewed both positively and negatively, for the reasons advanced in the submissions summarised above.
In circumstances where I consider that there are arguable incentives and disincentives in relation to each of the possible funding models, it is relevant to consider the expected net return to group members. I accept that this should be done having regard to standardised assumptions such as the likely length of trial (even though difference in the underlying "non-standardised" assumptions may have arisen for valid reasons which render the standardisation process of arguably less weight - such as the assumption as to the experience level at which particular legal or case management work will be carried out). The most significant feature of the comparative tables in this regard, in my opinion, is that they show that there is a broad comparability of outcome across all funding models with the notable exception of the Wigmans model.

[39]

The proposals for security
In summary, there are two broad ways in which the competing representative parties propose to address the position in relation to the provision of security for AMP's costs: by way of security paid into Court (the Wigmans and Komlotex/Fernbrook proceedings); and by deed of indemnity and/or ATE insurance (the Wileypark and Georgiou proceedings).
As to the first, security for costs was paid into Court by Burford in the Wigmans proceeding on 1 June 2018, in the amount of $5 million; pursuant to consent orders which do not limit the ability of AMP to seek further security in due course. The cost of providing security for costs in the Wigmans proceeding will be borne by Burford and will not be passed on to group members, either directly or indirectly, in any circumstances, including in the event of a successful outcome (see the affidavit of Mr Arnott affirmed 7 November 2018 at [54]). Ms Wigmans points to this factor as being in favour of her proceeding.
While the position in the Komlotex proceeding, initially, was that Maurice Blackburn would indemnify Komlotex against any adverse costs order and it was contemplated that an ATE insurance policy might be obtained (see the affidavit of Andrew Watson sworn 7 November 2018 at 30). Komlotex' position as at 4 December 2018 was that Maurice Blackburn was willing to provide security for costs in whatever form and in whatever amount it was able to agree with AMP or, failing such agreement, as it was ordered to provide by the Court (see Mr Watson's affidavit sworn 4 December 2018 at [15], reply submissions 4 December 2018 at [32]). By the time of the hearing of the present motions, the position of Komlotex was that if its proceeding were permitted to proceed then it would make a payment into Court of a sum mirroring the amount paid into Court in the Wigmans proceeding by way of security. Senior Counsel for Komlotex proffered an undertaking on behalf of Maurice Blackburn that they would pay into court the amount of $5 million if successful on the (multiplicity) motions (T 5.29-36) and would accept an order that continuation of the proceedings be conditional on that payment. AMP has indicated that this is acceptable to it. The provision of such security would again be without prejudice to AMP's ability to seek further security in due course. (Komlotex also apparently contemplates an ATE insurance policy but only seeks to recover the cost of obtaining such a policy if the resolution sum exceeds a certain amount and says in practical terms that amount is now limited to $1.25 million - see T 27).

[40]

AMP's position

AMP's position, in essence, is that the sufficiency of the security that the respective plaintiffs are prepared to offer for AMP's costs, one of the considerations (i.e., fairness to the defendant) that is properly to be taken into account on this application; and that it can readily be concluded that AMP's costs will be substantial (having regard to the evidence filed by the plaintiffs as to their own estimated costs of the proceedings). AMP accepts as sufficient for the present time the arrangements for the provision of security by way of payment into Court (already put in place in the Wigmans proceeding and agreed to be put in place if the Komlotex/Fernbrook proceedings continues).
AMP has, however, raised concerns as to the funding proposals which contemplate the provision of security for its costs by a combination of reliance upon ATE insurance. AMP says that the need for a proper regime for security to be provided is underscored by the fact that the representative plaintiffs in the Wileypark, Komlotex and Georgiou proceedings recently took the position that there was no power to award costs against them in relation to their unsuccessful applications (Wigmans v AMP Ltd [2018] NSWSC 1045) for the transfer of the Wigmans proceeding to the Federal Court, because they are also group members in the Wigmans proceeding (and as such immunised from any costs order by operation of s 181 of the Civil Procedure Act), which led to the filing of a motion against the third-party funders who, in turn, denied any liability for AMP's and Ms Wigmans' costs by reason of s 181 of the Civil Procedure Act. (That dispute has now been resolved - see Wigmans v AMP Ltd (No 3) [2019] NSWSC 162 (Wigmans v AMP (No 3)); Wigmans v AMP Ltd (No 4) [2019] NSWSC 257 (Wigmans v AMP (No 4)).) Thus, AMP submits that it should be a condition of carriage that the successful plaintiff provide security for its costs in the form of cash paid into Court, or a bank guarantee, in the sum of $5 million in the first instance, and without prejudice to AMP's right to seek an order from the Court for further security for its costs.
The difficulties identified by AMP with the proposal for the provision of security in reliance upon an ATE policy, in the case of the Wileypark and Georgiou proceedings, are as follows.
First, as to the Wileypark proceeding, that the terms of any proposed ATE insurance policy have not been disclosed. AMP argues that, in the absence of such disclosure, it could not be concluded that the ATE insurance proposal in the Wileypark proceeding will provide sufficient security (pointing to what was said by Yates J in Petersen Superannuation Fund Pty Ltd v Bank of Queensland Ltd [2017] FCA 699 (Petersen) as to the complexities and ambiguities of ATE insurance arrangements of the kind there being considered) and noting that his Honour there observed that, in determining whether an ATE insurance policy could provide sufficient security for costs, it was necessary for the Court to undertake an assessment of the risk that the policy might be avoided so as to prevent payment under it (see [95]); and that this would involve an assessment of the terms and conditions of the policy as well as the practical risks that payment under the policy would be denied (see [96]). AMP notes that, in the Wileypark proceeding, it is stated only that such insurance is held with an "A rated insurer". It is submitted that in circumstances where the identity of the relevant insurer and the terms of any proposed policy have not been disclosed, this does not establish an ability to meet any adverse costs order. Further, insofar as the ATE policy proposed to be relied upon in the Wileypark proceeding is said to be a "global" policy in place for IMF (i.e., covering multiple proceedings that IMF funds), with a total limit on the policy of $30 million, AMP submits that in the absence of evidence of the other proceedings that IMF funds that may require payment under the policy, it is not possible to form a view as to whether that policy will ultimately be sufficient to meet any costs liability to AMP. (Wileypark's response to this is that, while it is a global policy, IMF's position is supported by its balance sheet - see T 65.)

[41]

Competing plaintiffs' position

Turning then to the position of the competing representative plaintiffs on this factor, I note as follows.
Ms Wigmans maintains that the proposals that involve ATE insurance as part of the provision of security (Wileypark and Georgiou proceedings) give rise to the possibility of further delay in the proceedings, it not being clear that they will be acceptable to AMP or to the Court having regard to the considerations taken into account in Petersen at [107]-[127]). Furthermore, it is submitted that the Wigmans proceeding is the only proceeding in which the costs of providing security for costs will not be visited upon group members, either directly or indirectly, in any circumstances and where there can be "absolute certainty" that there will be no delay arising from an interlocutory dispute over security for costs. Thus, it is submitted that the approach taken to security for costs in the Wigmans proceeding is superior to the proposed approaches in the other proceedings.
Wileypark says that, on its funding proposal, apart from the ATE insurance, AMP has the comfort of the substantial financial/cash position of IMF, a large, listed entity based in Australia (referring to Mr Saker's affidavit, especially at [33]-[35]).
Mr Georgiou submits that the difference in the form of security proposed in his Georgiou proceeding compared to the Wigmans proceeding, is not a basis for differentiating between those proceedings. Mr Georgiou argues that the proposal in the Georgiou proceeding to provide security by way of deed of indemnity provides sufficient protection to AMP should it seek security and says that there is no reason to think provision of security in the Georgiou proceeding would involve any material delay. As to the further submissions made on behalf of Ms Wigmans concerning the cost of ATE insurance in the Georgiou proceeding, again it is said that this misstates the evidence and that no multiple is charged on the deferred insurance premium in the proposed funding terms in the Georgiou proceeding. Reference here is made to 5 of the Funding Terms (Annexure A to the notice of motion filed 24 October 2018) which states that the funder will pay any adverse costs order or other costs order which the Court makes in the proceedings "against the Plaintiff in favour of the Defendants and Other Parties (or any one or more of them), in each case in so far as those costs were incurred during the term that these Funding Terms are operative".

[42]

Conclusion as to second factor

Having regard to the concerns raised by AMP as to reliance by the representative plaintiffs on an ATE insurance policy as security for its costs, in circumstances where the provisions of the policy are not in evidence (which I accept have force), this second factor favours the Wigmans and Komlotex proceedings equally over the remaining proceedings (albeit that the position of Mr Georgiou ultimately seemed to be that, if this were to be an issue, then he would seek to reach agreement with AMP as to the manner in which security could be provided).

[43]

Nature and scope of the causes of action advanced (and relevant case theories)
I have indicated above the differences identified by the respective parties as to the nature and scope of the causes of action advanced in the respective proceedings. There are four main areas of difference, or arguable difference, in the pleadings that have been identified: the unconscionable conduct claim in the Wigmans proceeding; the claim on behalf of those who acquired AMP shares off-market or who acquired ADRs; the claim sought to be brought on behalf of those who acquired shares on 16/17 April 2018; and the claim based on the impugned conduct of AMP having regard to the receipt of legal advice as to its lawfulness (in the Wileypark proceeding).
Ms Wigmans contends that the unconscionable conduct claim presents a "real, material, forensic negotiating advantage" (T 23.40), arguing that it is not limited in time to the period six years before commencement of the representative proceeding.
The other representative plaintiffs contend that the inclusion of an unconscionable conduct claim does not provide any real advantage. It is said that the unconscionable conduct claim is based on substantially the same conduct that forms the basis of the continuous disclosure obligation and the misleading conduct claims advanced in each of the other proceedings, and, hence, that there is no realistic prospect that the unconscionable conduct claim could succeed in circumstances in which the other claims failed and, therefore, the bringing of that claim may result in additional and unnecessary costs for group members (see Smith v Australian Executor Trustees, where Ball J considered that there was at least a theoretical risk that one of the two competing class actions could succeed, while the other failed, given the differences in the claims there made (at [16])).
Further, it is submitted that any claim for unconscionable conduct is misconceived in a securities class action because, unlike breach of the continuous disclosure obligations and unlike misleading or deceptive conduct, unconscionable conduct does not deceive the market (Wileypark submissions at [65]). Indeed, Wileypark submits that submits that the "costly distraction" of such a claim is a reason for the Court declining to select the Wigmans proceeding as the open class proceeding to continue.
As to the criticism by the competing representative plaintiffs of her unconscionable conduct claim, Ms Wigmans maintains that they have misunderstood the nature of her claim (and accuses the critics of her claim as not wishing "to pursue AMP with anything other than the comfortable orthodoxy"). Ms Wigmans says that because the essence of her unconscionable conduct claim is not a fraud on the market it offers a different causation theory and hence a longer claim period. Ms Wigmans articulates her claim as being that: by engaging in a course of conduct that was unconscionable, AMP caused itself significant reputational damage which was reflected in the diminishment of its share price that occurred when the conduct was revealed to the market. Ms Wigmans says that the relevant counterfactual is not that AMP should have disclosed its actions earlier but, rather, that it should not have engaged in the conduct at all; and hence that shareholders suffered loss at the time the share price diminished, not at the time of purchasing AMP shares. Thus, Ms Wigmans says that her unconscionable conduct claim offers two main advantages to group members: first, that it does not depend upon a theory of market-based causation; and, second, that it is not confined to shareholders who bought their shares in any particular period.

[44]

Conclusion as to third factor

AMP has noted the "outliers" in terms of the pleaded claims as being: first, the unconscionable conduct claim; second, the extension of the claim to purchasers of shares on 16 and 17 April 2018; and, third, the claim based on the receipt of legal advice. The simple answer to much of the debate as to pleading differences is the proposition (not here challenged by AMP, subject only to any limitations issue to which it might give rise) that if there were to be a real forensic advantage in the alternative ways in which the claims are sought to be brought it might be expected that they would be explored by those representing whichever of the representative proceedings is ultimately to go forward.
As to the claimed juridical advantage of the unconscionable conduct claim (being, the extension of the claim period to purchasers of shares prior to 10 May 2012), this seems to me to be problematic from a limitations point of view but that is a question that should not be determined at this stage (see Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; [1992] HCA 55 (Wardley)). In any event, it is difficult to see how a claim of unconscionable conduct would succeed if the remaining claims were to fail (and although it was submitted that the difficulties with a market-based causation theory of loss would not attend the unconscionable conduct claim postulated by Ms Wigmans, it was not made apparent how that would broadly translate into higher returns for group members other than as representing a negotiating advantage).
As to the inclusion of claims in respect of 16/17 April 2018 purchasers, again AMP does not dispute that whoever might be chosen to continue with the representative proceeding could amend to encompass such a class. The real difficulty it seems to me with the inclusion of the 16/17 April 2018 claims is that there would surely be a need to explore precisely what knowledge, if any, purchasers on those dates had as to the disclosures that had by then been made at the Royal Commission. It seems to me likely that this would render the representative proceedings an unsuitable vehicle for the prosecution of those claims (even as a subset of the overall class of AMP shareholders).
As to the legal advice claim, there is a dispute as to whether this is in fact encompassed in the other plaintiffs' pleadings (see Komlotex' argument at T 49ff, for example; or that of Ms Wigmans at T 156ff). Again, however, to the extent that this is not encompassed by an existing pleading, it might be expected that if it has force there would be an amendment to reflect that additional claim.

[45]

Size of the respective classes
As to the relevant claim periods, while there is substantial overlap in the definitions of group members in the competing proceedings they are not identical.
Ms Wigmans submits that a clear "forensic advantage" to the Wigmans proceeding is that it is brought on behalf of the broadest group of persons. In this regard, Ms Wigmans emphasises that her proceeding is unique in its inclusion of: persons who purchased shares in AMP on 16 and 17 April 2018 and (in respect of the unconscionable conduct claim) persons who purchased shares in AMP prior to 10 May 2012.
Ms Wigmans points out that over 11 million AMP shares traded on 16 April 2018, and over 20 million AMP shares traded on 17 April 2018. It is submitted that there is a basis to think that persons who purchased those shares did so at an inflated price because the information disclosed to the Royal Commission on 16 and 17 April 2018, or the full extent of it, was not known to the market; and, hence, there is very real substance to the extension of the class period. Further, Ms Wigmans submits that, notwithstanding that (at least on 17 April 2018) such group members may have been partially aware of AMP's conduct, the relevant misconduct was not wholly revealed to the market until after market close on 17 April 2018 and, until that time, the share price was inflated.
Thus, it is submitted that the Wigmans proceeding is the vehicle which permits the largest aggregate amount of losses to be claimed on behalf of group. It is said that there is no basis to stay the Wigmans proceeding insofar as it is brought on behalf of group members who are not represented in any subsequent proceeding; and that, conversely, all group members in the subsequent proceedings may vindicate their rights in the Wigmans proceeding. It is submitted that it will be more efficient, and, therefore, in the interests of group members, to prosecute group members' claims in one proceeding (which can only be the Wigmans proceeding) than in two proceedings.
As to the start date, the claim period in the Wigmans proceeding does not include any start date in respect of its unconscionable conduct claims. In this regard, Mr Scattini has deposed to his view that the cause of action did not accrue until the fall in AMP's share price and ends on 17 April 2018 (see his affidavit affirmed 22 November 2018 at [24]). In relation to other claims, the relevant period in Ms Wigmans' proceeding commences on 10 May 2012 (that being six years before the filing of the initiating process).

[46]

Conclusion as to fourth factor

I am not persuaded that the size of the respective classes is a factor that points towards any particular one of the competing proceedings. The main difference in terms of the size of the classes is as to whether the class encompasses those who acquired shares prior to 10 May 2012 and whether it encompasses those who acquired shares in the period 16/17 April 2018. I have referred above to the problems I see with those claims. In circumstances where I have concluded that the suggested juridical advantage of causes of action extending before 10 May 2012 is by no means clear and the likely complexity arising from the inclusion of the 16/17 April purchasers is problematic, I do not consider that this fourth factor carries weight in determining which of the proposed representative proceedings is the most suitable vehicle to proceed.

[47]

Extent of any bookbuild
Wileypark places much weight on this factor and emphasises in this context that the fact that IMF has received signed funding agreements from substantial numbers of sophisticated repeat clients means that there is a risk of significant reputational damage if IMF were to advocate for a settlement that did not appear to its repeat clients to be the best settlement reasonably able to be achieved and that this is an incentive against such conduct. Wileypark submit that, in contrast, the absence of evidence that the funders in the Wigmans or Georgiou proceedings have any repeat clients makes available an inference that there is a much smaller long-term commercial risk to those funders in agreeing to a lower settlement.
Wileypark acknowledges that the Full Court in GetSwift Appeal (at 178) said that the number of group members who signed up to funding agreements (or retainers) was a relevant (but, there, not significant) consideration, and that the level of real "choice" exercised by "small" claimants that sign up to a funding agreement or retainer may be overstated. However, it argues that their Honours clearly regarded "a repeat claimant in class actions such as an institutional investor" as being in a different category.
Wileypark notes that, as to institutional investors, the Full Court pointed out at [265] that in Bellamy's, not only was there a significantly greater number of funded group members, but the relevant group included "sophisticated institutions, investment managers, global asset managers, sovereign wealth funds and superannuation funds, including investors with large claims by value, investors with repeat experience in participating in funded securities class actions, and investors with sufficient knowledge, sophistication and leverage to properly negotiate the terms of the funding agreements entered into and to make informed choices between competing funding agreements on offer". The Full Court noted that, in contrast, in the case at hand, there was no evidence that the group members shared those characteristics. Wileypark says that, plainly the Full Court was of the view that significant weight should be placed on the fact that group members in a proceeding included numerous persons having the characteristics there described by the Full Court.
Wileypark submits that "professional litigants", such as institutions, can be relied upon to ensure that the solicitors retained to represent them in the proceeding will adhere to the highest standards of skill and efficiency (and that they value the commercial benefits provided to them by a particular litigation funder); and submits that (at [13]): [t]he corollary of this, of course, is that the Court should not lightly compel such institutions to participate in an alternative class action being run by solicitors not of their choosing (and require them to have their litigation funded by an entity with which they did not choose to have commercial dealings).

[48]

Conclusion as to fifth factor

I consider that the weight sought to be placed by Wileypark on this factor is contrary to the admonition in GetSwift Appeal against the adverse consequences of bookbuilding.
Criticism was made by various of the other representative plaintiffs, with some force in my opinion, as to how "informed" the choice really was - see, for example the submission by Fernbrook that there is no evidence as to when group members signed with IMF as compared with the time at which Komlotex changed its funding proposal (which is said to impact on the informed choice argument); and the submission for Komlotex that the "Information Pack" distributed by IMF on 1 May 2018 had nothing about other potential class actions (other than a "subtle" reference to a funding agreement - see T 32). Wileypark accepted that its submission as to "informed choice" was not that the clients wanted IMF as funder by reference to a comparison with other funding terms (see T 135) but, in effect that those repeat institutional investors, knowing the proposed IMF funding terms, were happy to sign funding arrangements with IMF whatever the other funding models might happen to be.
I consider the "informed class" argument to be overstated. Apart from the fact that it is not clear that institutional investors made the decision to retain Phi Finney (and sign the IMF funding agreements) based on any comparative analysis of the respective pleadings in the various proceedings, nor of the funding arrangements in those proceedings (and may simply have done so on the basis of previous experience or reputation); it is not clear that those institutional investors would not wish to proceed with an alternative funding model if the Wileypark proceeding were not to continue. At most, it provides some evidence as to their faith in the ability of Phi Finney and IMF to conduct class action litigation of this kind.
I give this factor no weight.

[49]

Experience of legal practitioners (and funders); availability of legal resources

[50]

Ms Wigmans' submissions

In written submissions, Ms Wigmans says that this factor is neutral in the present case and that, just as in GetSwift, "it is plain on the evidence that each firm of solicitors and the counsel they have retained are highly experienced in complex commercial litigation and also in the sub-speciality of securities class actions" and that "there is no reason to doubt that any of the … firms would have difficulty in running the litigation on behalf of the open class".
It is submitted that the focus ought to be upon which of the solicitors, or which team of solicitors and funder, is or are best incentivised to deploy expertise and resources to achieve the optimal outcome for group members "as opposed, for example, to diverting that expertise and those resources to some other endeavour offering a better return or lower risk". It is submitted that the more advanced state of preparation of the Wigmans proceeding is indicative of the diligence with which it has been litigated and the commitment of its solicitors and funder to resolving group members' claims.
Ms Wigmans dismisses the evidence put forward by Maurice Blackburn of its "unparalleled" track record of achieving large settlements as "boastful" and says that it "tells very little". Ms Wigmans says that "the fact that Maurice Blackburn is capable of running class actions does not mean that no one else is capable of doing so" and emphasises that the Court ruling on a carriage motion should only differentiate between legal firms "if there is a basis for differentiation" (GetSwift Appeal at [278]) arguing that there is none here (see reply submissions at [45]). In this context, however, it is worth noting that Ms Wigmans points out that Komlotex was the last to file proceedings against AMP and criticises both the timing of that filing and the case theory with which the case was commenced (see [141]). Further, Ms Wigmans points to the fact that Komlotex chose to commence its proceeding as a funded class action, pursuant to which the funder would assume liability for adverse costs orders and provide security for costs in return for a commission of 12.5% of any resolution sum, and says that it "abandoned that structure after the funder terminated the agreement, and is now in a position only to offer a 'no win no fee' proposal without the involvement of a funder". Thus, Ms Wigmans submits that the Court would be slow to place much weight on Maurice Blackburn's experience and that the firm's conduct to date in the context of the present proceedings is more relevant (and, it is said, would not give the Court great confidence - see below).

[51]

Komlotex' submissions

Komlotex on the other hand, emphasises the "track record" of its legal team and notes that in GetSwift Appeal the Full Court observed that the focus on selecting the proceeding likely to achieve the largest settlement or judgment (the biggest single determinant of group member returns) meant that the Court was required to choose the proceeding with the legal team "most likely to achieve the largest settlement or judgment, i.e. the most experienced and capable"; and, relevantly, that the Court "should not dodge that question if there is a basis for differentiation". Komlotex submits that in the matters presently before the Court there is a basis for differentiation and, hence, that the task of differentiating between legal firms cannot be shirked.
In that context, Komlotex relies on evidence as to: the establishment of Maurice Blackburn's class actions practice in about 1998; the number of lawyers across various offices in that practice; statistics as to the successful prosecution and settlement since 2003 of seventeen securities class actions (or proposed class actions) involving ASX-listed entities, resulting in substantial group member payments; statistics (not including matters where the amounts were confidential) as to the aggregated settlement sums obtained in cases in which Maurice Blackburn acted for the representative applicant/plaintiff(s) over a period of some 24 years, out of the total payments to group members pursuant to judicially-approved settlements in class action proceedings over that period; and as to the experience of those solicitors assisting Mr Watson in the Komlotex proceeding (see the affidavit of Mr Watson sworn 7 November 2018).
Komlotex emphasises that Maurice Blackburn is the only law firm in Australia to have acted in a class action involving listed securities where the claims of the class members it represented settled for more than $100 million, and that is has done so on seven separate occasions (contrasting this with the experience of the other plaintiff law firms involved in this dispute).
Mr Watson has deposed to Maurice Blackburn having conducted many class actions on a "no win, no fee" basis, and says that, despite the fact that the firm remained on risk for substantial fees in many such cases the firm rejected settlement offers that the firm considered did not properly reflect the strength and value of the group members' claims notwithstanding that those "inferior" offers of settlement would have resulted in Maurice Blackburn's costs being paid in their entirety, together with a reasonable return to group members. Emphasis was placed on the fact that Maurice Blackburn achieved these settlements on a "no win, no fee" basis (see T 32).

[52]

Wileypark's submissions

Like Ms Wigmans, Wileypark says that the historical achievements of Maurice Blackburn in class action litigation say very little about the likelihood of Maurice Blackburn adding any particular value to the outcome for the group members of their claims against AMP, noting that settlements are the product of the work done by a particular team of solicitors and barristers working on a particular case (supported by a particular litigation funder). It is submitted that in the absence of analysis at a greater level of detail, the Court is not assisted by "headline claims of historical successes". Further, it is submitted that the size of a settlement is principally a reflection of the value of the underlying claims ( i.e., it must be presumed that it reflects the realistic quantum of damages). It is submitted that it is hardly surprising that a law firm which historically has held a large market share in the conduct of Australian class actions will have had the conduct of a number of larger value claims, which in turn give rise to larger value settlements. Wileypark further submits that in the Komlotex proceeding there is "a marked absence of any costs structure that explicitly addresses the subconscious or unconscious incentives that may otherwise operate on lawyers in the conduct of those proceedings".
That said, Wileypark does engage in a comparison of the experience of the solicitors at least in the context of arguing that a factor that does not assist the Wigmans proceeding is that, while Mr Scattini has general class action experience, he does not (according to his 7 November 2018 affidavit at [79]-[83]), appear to have had any experience in securities class actions, which Wileypark describes as something of a niche area; nor the Georgiou proceeding (noting that Ms Antzoulatos deposes to having been involved in the conduct of only one securities class action previously in her 6 November 2018 affidavit at 10 and there being no evidence of any other securities class action experience in the relevant team of lawyers acting in the Georgiou proceeding).
Wileypark says that the provision of free project management services is only one of a number of advantages of being a group member in a proceeding funded by IMF. It notes that IMF operates on the basis of a rigorous set of corporate governance guidelines (see Mr Saker's affidavit at [29]-[32]; pp 43-140); that it is one of the oldest and most respected litigation funders in Australia (Mr Finney's affidavit of 12 November 2018 at [66]), with an excellent track record (Mr Saker's affidavit at [28]; pp 1-42) and with very solid financial resources (Mr Saker's affidavit at [33]-[43]; pp 141-264). (It is submitted that IMF's track record, corporate governance guidelines and reputation (as evidenced by the number of repeat clients it has) is such that the criticism made by Ms Wigmans as to the dispute resolution procedures under its funding model (see Mr Scattini's affidavit of 22 November 2018 at [26]-[28] and [33]-[37]) "can be left to one side".)

[53]

Mr Georgiou's submissions

Mr Georgiou submits that this is not a case where it is necessary to differentiate between legal firms or solicitors; submitting that each of the legal firms with conduct of the competing actions is appropriately experienced and capable. It is submitted that there is no basis for the Court to conclude that the skill and experience of the legal practitioners in any one of the competing class actions would be likely to achieve a superior outcome compared to the other proceedings. Mr Georgiou submits in particular that even if one firm has conducted more securities class actions, that is not a reason to prefer that firm. It is submitted that the contrary may be the case "given risks of complacency, inflated fees and the development of a monopoly if any firm is favoured solely because it has conducted more securities class actions in the past".
Mr Georgiou nevertheless says that, by reference to the conduct of the legal teams in the course of these proceedings to date, the Court can have confidence that the legal team engaged in the Georgiou proceeding will act in the best interests of group members, noting that: in the case of the competing transfer applications, Mr Georgiou sought to have AMP's transfer applications in the Federal Court determined before the hearing of any application to transfer Ms Wigmans' proceedings to the Federal Court (which, had that occurred may have rendered the transfer applications in this Court unnecessary); Mr Georgiou did not file any anti-suit injunctions (which it is said cannot rationally be considered to be in the interests of the group members in the overlapping proceedings); Mr Georgiou's legal team has prepared the most detailed and transparent budget for the costs of the proceedings, and have disclosed that to the other plaintiffs; Mr Georgiou's legal team has not engaged in any expensive and unnecessary bookbuild that does not serve the interests of group members in an "open class" representative proceeding (considered further below); and Mr Georgiou did not pursue a consolidation of some of the competing proceedings (which it is said confers no benefit on group members and only results in additional costs).
Mr Georgiou cavils with the proposition that IMF is a superior funder to Augusta and says that such a submission suffers from the same defects as identified in respect of the possibility of preferring the Komlotex proceeding based on Maurice Blackburn's experience. It is submitted that where there is evidence that each funder (here not including Maurice Blackburn) has the capacity to meet its funding obligations, there is no reason to prefer a more "experienced" funder and that the consequence of so doing is likely to result in increased fees, complacency on the part of the funder and the development of a monopoly. It is accepted that Augusta is a relative "newcomer" to funding in Australia but Mr Georgiou says that it has already funded a number of class actions; employs staff with experience as commercial litigators; and has the ability to provide informed assistance and oversight on both the strategic and costs-related aspects of a securities class action.

[54]

Conclusion as to sixth factor

This factor, in my opinion, is neutral. I consider there is no sensible basis for differentiation between the experience or abilities of the respective legal/funding teams and I give this factor no weight.
This is not a case where one is comparing the ability on the one hand of a sole practitioner in some rural or suburban practice (and I mean no disrespect to any of those practitioners) to conduct complex litigation of the present kind against a well-resourced defendant against the ability on the other hand of firms of the kind here involved in the litigation to do so. Nor is the comparison of the experience of the respective sets of lawyers in the conduct of class actions or their track record to date in such matters particularly instructive, at least without much more information (no doubt confidential and unable to be provided) as to the conduct of the settlement negotiations and basis on which settlements were reached in those matters (much of which would in any event be likely to be anecdotal and difficult to test).
That conclusion is reinforced by the fact that Mr Scattini (now at Quinn Emanuel) was formerly a partner at Maurice Blackburn, which shows the difficulty of comparison of the experience of the particular individuals running the litigation.
Similar observations can be made about the respective funders. In my opinion, it is inappropriate for the Court here to partake in a "beauty parade" (to adopt Ms Wigmans' phrase) which compares the respective legal/funding teams according to anecdotal and empirical data that I cannot properly test. I am satisfied that the respective legal teams each have the skill and capacity to conduct proceedings of this kind in the interests of class members.

[55]

State of progress of the proceedings
Ms Wigmans submits that this factor points in favour of the Wigmans proceeding. It is noted that in none of the representative proceedings, other than the Wigmans proceeding, has the matter progressed beyond the filing of a pleading; whereas, in the Wigmans proceeding: security for costs has been agreed and provided; particulars have been sought and obtained; AMP has filed a defence; Ms Wigmans has served her lay evidence and has also served, on a without prejudice basis, an expert report for mediation. Ms Wigmans argues that the fact that the Wigmans proceeding is more advanced means that it is more likely to promote the just, quick and cheap resolution of the proceedings.
Ms Wigmans says that, subject to the completion of an opt-out and registration process, the Wigmans proceeding is ready to proceed to mediation and that this is a key point of distinction that was not present in GetSwift (since, there, Lee J found that each of the proceedings was at a sufficiently equal state of preparation and there was no reason to conclude that anything about any of the proceedings meant that one would proceed to a mediation or an initial trial earlier than the other).
Each of the other competing representative plaintiffs argues that this is a factor which is neutral or should be given no weight.
Komlotex submits that the "eagerness" of Ms Wigmans' solicitors: to proceed with opt out, registration and CFOs within the first month of issuing the Wigmans proceeding; and to serve preliminary expert evidence for mediation just over three months after commencement and prior to any discovery or the filing of any evidence, does not align with the conduct of a team prepared "to work assiduously to achieve the best outcome for the applicant and group members and to take responsible risks in that regard"; and says that the fact that these steps were taken shortly after the commencement of the competing proceedings (and prior to the orderly resolution of the multiplicity question by the Court in its protective role vis-a-vis unrepresented group members) raises additional concerns.
Komlotex argues that, other than the steps taken by Ms Wigmans to advance an early mediation, there is no material difference in the state of preparation of the various proceedings. In that regard, Mr Watson has deposed that Maurice Blackburn has undertaken considerable work to investigate and develop the claim (including prior to the issue of its proceeding) and has engaged in "mature reflection" to determine the appropriate claim period (see the affidavit of Mr Watson sworn 7 November 2018 at [55]-62]).

[56]

Conclusion as to seventh factor

I am not persuaded that the more advanced state of preparation of the Wigmans proceeding is to such an extent as to warrant the conclusion that this proceeding should be the vehicle to go forward. Had all other factors been equal this might have provided a basis for differentiation but I am not persuaded that all other factors are equal.
I give this factor little weight. While in some cases the state of progress of the matter may be a relevant factor, I do not consider this is one of those cases.

[57]

Conduct of the representative plaintiffs to date
Again, Ms Wigmans says this factor points in favour of the Wigmans proceeding. In particular, Ms Wigmans points to matters relating to the conduct of the present applications as relevant to the diligence with which it could be expected that the respective solicitors are likely to conduct their respective proceedings should it go forward (see the affidavit evidence of Mr Scattini). Criticism is made of "tactical manoeuvring amongst Fernbrook, Wileypark and Komlotex that has plagued these applications".
Ms Wigmans says that she is the only representative plaintiff that has complied fully with the orders of 10 October 2018 and she emphasises the delay of Komlotex in amending its class period pleaded (as adverted to above at [297]). Ms Wigmans points to the observation in GetSwift that delay (in the sense of tardiness) might in some circumstances "be an important, indeed decisive, consideration".
In response to the assertion by Ms Wigmans of "dilatory" conduct on Komlotex' part (arising from the fact that it filed an application dealing with multiplicity on 24 October 2018, later "abandoned" it on 16 November 2018, and did not file a new application until 22 November 2018), Komlotex notes that: it filed four identical notices of motion on 24 October 2018 (one in each of the competing proceedings); it "abandoned" only one of those motions on 16 November 2018 (being the one filed in the Fernbrook proceeding, and only because it had reached a compromise of its dispute with Fernbrook by an in-principle agreement to consolidate the two proceedings); and, in the period between 16 November and 22 November 2018, Komlotex and Fernbrook formalised the terms of their agreement. Komlotex says that it can hardly be criticised for advancing the overriding purpose by reaching agreement with Fernbrook's solicitors to resolve part of the present dispute (and says that this also explains why Fernbrook did not file any evidence until 21 November 2018 when it filed a short affidavit in support of the consolidation motion filed on 22 November 2018).
Insofar as Ms Wigmans refers to Komlotex' alleged delay in finalising its class period and in serving a pleading, Komlotex says that the fact that Maurice Blackburn engaged in investigations before satisfying itself that it was appropriate to plead the longer class period is not a matter that should be criticised; and that there was no delay in serving Komlotex' draft pleading. Komlotex notes that it validly commenced its proceeding in the Federal Court by concise statement (a procedural step deemed by s 1337P of the Corporations Act 2001 (Cth) to have taken place in this Court) and that, although there has been no order for Komlotex to replace the concise statement in this Court, it has prepared a draft commercial list statement to be filed in the proposed Komlotex/Fernbrook proceeding in anticipation that it may be required to do so in the event that it is successful in the present applications. It is submitted that, because the competing proceedings have effectively been "on hold" pending the resolution of multiplicity question, there has been no operative delay in comparison to the other competing proceedings. Komlotex argues that there has been careful thought given to the pleading issues and rejects the suggestion that there has been delay on its part such as to warrant a conclusion that it would not prosecute the proceeding with due diligence if its proceeding matter were to go forward.

[58]

Conclusion as to eighth factor

I do not consider that the conduct of the respective legal/funding teams to date points in favour or against any one or more of them. All the legal teams are in my opinion suitably qualified and resourced to be in a position competently to conduct the proceedings and there is nothing to suggest that they would not do so, going forward, efficiently and in the best interests of group members.

[59]

Determination

As earlier noted, I have more than a little sympathy for the proposition that a "beauty parade" of the kind that has taken place involves making invidious comparisons between those involved in the litigation in the various competing proceedings. I do not, however, accept that such a process brings or is likely "to bring the administration of justice into disrepute because it encourages idiosyncratic choice in each individual case" (as Ms Wigmans has suggested).
Certainly, as Ms Wigmans notes, there have been many pages of written submissions, numerous affidavits and volumes of documentary evidence before me on the present applications. The criticism might well be made that the process could have been undertaken less elaborately than it has (see the Full Court in GetSwift Appeal). However, I do not accept the suggestion that the cases have not developed, or that this process does not assist the development of, a "principled framework for the resolution of multiplicity disputes" (see Ms Wigmans' reply submissions at [1]); nor is it necessarily the case that the cost incurred in these applications will have been of no benefit to group members (at least insofar as the exercise has focussed the parties or their legal representatives' minds on the optimum funding models to be put forward and even more relevantly, the ambit of the claims properly to be made).
The power to stay one or more proceedings, so as to resolve the existence of a multiplicity of proceedings, pursuant to either s 67 of the Civil Procedure Act or the Court's inherent power to control its own processes is not in dispute. Nor is it in dispute that that power must be exercised having regard to the overriding purpose in s 56 of the Civil Procedure Act so as to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
AMP has emphasised that in the particular context of representative proceedings a central aim of statutory representative proceeding provisions such as those contained in Pt 10 of the Civil Procedure Act is facilitated by allowing a common, binding decision to be made in one proceeding instead of in multiple proceedings (see its submissions at [15]ff) (hence the concern to avoid unnecessary duplication of proceedings), noting that in Wileypark v AMP at [2], Allsop CJ, with whom Middleton and Beach JJ agreed, said: As was clear, the running of multiple actions by different lawyers, with different funders was, in principle, potentially inimical to the administration of justice and, in particular, potentially inimical to the interests of group members, and potentially oppressive to AMP.

[60]

Orders

I propose to make orders as sought by Komlotex in its notices of motion for the consolidation of its proceeding with that of Fernbrook and for the stay of the other representative proceedings. Those orders will be conditional on the payment into Court on behalf of Komlotex and Fernbrook of the sum of $5 million as security for the defendant's costs, without prejudice to the ability of AMP to seek additional security as the matter progresses. I propose to reserve the question of costs in case there are submissions to be made in that regard. It may also be that there are consequential orders to be made (I have in mind the payment out of the security paid into Court by Burford, for example). For that purpose, I will give liberty to apply. I will also list the matter for directions for the further case management of the Komlotex/Fernbrook proceeding.
The orders I make are as follows: 1. Pursuant to r 28.5 of the Uniform Civil Procedure Rules 2005 (NSW), order that proceeding 2018/310118 (the Komlotex proceeding) be consolidated with proceeding 2018/309329 (the Fernbrook proceeding) and that the consolidated proceeding be known as Komlotex Pty Ltd v AMP Limited (Consolidated proceeding). 2. Order that the plaintiff in the Komlotex proceeding and the plaintiff in the Fernbrook proceeding (together, the joint plaintiffs) be, respectively, the first plaintiff and the second plaintiff in the Consolidated proceeding. 3. Order that the joint plaintiffs be represented by one firm of solicitors (being, until further order, the current solicitors for the plaintiff in the Komlotex proceeding, Maurice Blackburn). 4. Order that the costs to date of each of the Komlotex proceeding and the Fernbrook proceeding be treated as costs in the Consolidated proceeding. 5. Order that the joint plaintiffs have liberty to seek, on any application for approval of a settlement of the Consolidated proceeding or for approval of costs following judgment, orders for approval of the costs referred to in order 4 above. 6. Subject to the payment into Court on behalf of the joint plaintiffs of the sum of $5 million as security for the defendant's costs (without prejudice to the defendant's ability from time to time to seek the provision of further security) order, pursuant to s 67 and s 183 of the Civil Procedure Act 2005 (NSW) and in the inherent power of the Court, that the following proceedings be permanently stayed: 1. 2018/00145792 (Wigmans v AMP Limited); 2. 2018/310082 (Wileypark Pty Ltd v AMP Limited); and 3. 2018/310103 (Andrew Georgiou v AMP Limited). 1. Reserve the question of the costs of the various motions brought by the plaintiffs in each of the proceedings referred to in order 6 above and the costs of the plaintiff in the Komlotex proceeding in respect of its notices of motion seeking a stay of the proceedings referred to in order 6 above; with a view to dealing with the question of costs on the papers. 2. Liberty to apply on 48 hours' notice.

[61]

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: 23 May 2019

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