Wigmans v AMP Ltd; Fernbrook

Wileypark's submissions

1. As noted, Wileypark seeks an order that the cost of the multiplicity motions, being the costs of and incidental to the hearing on 6 and 7 December 2018, be reserved. It notes that such an order mirrors the approach adopted by the Federal Court in the GetSwift proceedings (see Perera v GetSwift Limited (No 2) [2018] FCA 909 (GetSwift (No 2)), though acknowledging that a different course was adopted in Impiombato v BHP Billiton Ltd (No 2) [2018] FCA 2045; (2018) 364 ALR 162 (Impiombato (No 2)), where the Court ordered that there be no order as to the costs of the relevant proceeding including the costs of and incidental to the multiplicity question.
2. Wileypark submits that a final determination of the costs outcomes for Wileypark (and, it accepts, of the other unsuccessful planitiffs) at this stage would occur "in the absence of the parties making submissions predicated upon, and the Court having the benefit of, the suite of complete information that exists only at the conclusion of a proceeding". One might, of course, say this about any costs order made at an interlocutory stage of a proceeding. However, Wileypark argues that representative proceedings often give rise to novel and peculiar situations.
3. Wileypark maintains that there is uncertainty about the appropriate order that would be made at the conclusion of this proceeding and that, it is therefore appropriate that the Court make an order reserving costs so as best to preserve the Court's ability to consider all relevant circumstances that may arise throughout the conduct of the proceeding and make costs orders that best achieve justice between all parties and all relevant participants when complete information is known.
4. It is submitted that there are no relevant differences in the present case that would warrant this Court departing from the approach adopted in GetSwift (No 2) (Wileypark noting that there were no reasons provided for the adoption of a different course in Impiombato (No 2)). Wileypark submits that at all times it acted reasonably in advancing its claims as to carriage in a proceeding that it commenced legitimately.

Determination

1. The position taken by Wileypark as to its costs of the proceeding must be understood in the context that it relied, in its submissions at the hearing of the multiplicity motions, on the costs it had incurred to date (its "sunk costs") as a factor to support the continuation of its proceeding (or at the very least that it not be permanently stayed). Its evidence was that, by 8 November 2018, approximately 1,350 professional fee hours had already been expended on the Wileypark proceeding by Phi Finney McDonald (Phi Finney), the solicitors acting for Wileypark, and that many hours had also been expended by counsel (see Mr Finney's affidavit affirmed 12 November 2018 at [42] and [46]; and Mr Finney's affidavit affirmed 28 November 2018 at [18]; where Mr Finney deposes to professional fee hours totalling some 1,345 hours). As noted at [206] of my reasons on the multiplicity motions, Wileypark submitted that these "sunk costs" should not lightly be "thrown away".
2. The so-called "sunk costs" factor of course applies equally to the other proceedings that I have stayed (the Wigmans and Georgiou proceedings), though no similar costs order was sought by the plaintiffs in those proceedings. As I noted at [207] of my reasons, there was some criticism as to the expenditure of costs in the Wileypark proceeding - a criticism with which it is not appropriate here to do more than to note that there may well be scope for argument in due course as to whether particular costs of the conduct of the proceeding leading up to the hearing of the multiplicity motions were reasonably incurred.
3. The general discretion as to costs is broad, though it must be exercised judicially and having regard to the mandate provided in the Civil Procedure Act 2005 (NSW) (in particular, under s 56 of that Act). It is not necessary to set out here the relevant principles applicable on the exercise of that general discretion; nor is it necessary to set out the principles applicable where proceedings are determined without a contested hearing on the merits as they are well known (see Re Minister for Immigration & Ethnic Affairs: Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6).
4. I consider that in the somewhat unusual (and hopefully not to be repeated) circumstances of the present case, with a multiplicity of proceedings covering broadly the same issues, arising out of the same factual circumstances, with overlapping class members and against the same defendant, commenced in different courts and within weeks of each other (indeed in the case of the Wileypark proceeding (2018/310082) on the very same day as the Wigmans proceeding (2018/145792)), and where the circumstances in which the costs of steps taken in one set of proceedings were incurred may be relevant to the ultimate decision as to costs, it is appropriate to reserve the question of the costs of preparation of the Wileypark proceeding leading up to the hearing of the multiplicity motions to be dealt with at the conclusion of the proceeding. However, I consider that there should be no order as to the costs of preparation for and hearing of the multiplicity motions themselves with the intent that Wileypark (and AMP) should each bear its own costs of those motions.
5. Having formed that view, there is logically no reason why that same result should not follow for the other proceedings that were stayed (the Wigmans proceeding and the Georgiou proceeding (2018/310103)), though the plaintiffs in those parties did not seek such an order and have been prepared to accept an order that there be no costs ordered in respect of the respective proceedings. It may well be that this is a result of the costs arrangements in place in respect of those proceedings and it is not for me to second-guess the parties' decisions in that regard. Therefore, in the absence of any application to do so, I will limit the above costs orders specifically to the Wileypark proceeding.
6. Accordingly, I will make the following orders: 1. In relation to the multiplicity motions heard on 6-7 December 2018, costs of Komlotex Pty Ltd and Fernbrook (Aust) Investments Pty Ltd and of the defendant (AMP Limited) be costs in the cause in the ongoing consolidated Komlotex/Fernbrook proceeding. 2. Save as provided in Order 3 below, order that there be no order as to the costs of all other parties, with the intent that each of those parties bears its own costs. 3. Order that the costs of preparation of the Wileypark Pty Ltd proceeding (other than the costs of preparation for and attendance at the hearing of the multiplicity motions, which are to be borne by Wileypark Pty Ltd) be reserved for consideration at the conclusion of the final hearing or determination of the consolidated proceeding.

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