Maurice Blackburn trumps as sole solicitors in Downer EDI shareholder class action

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This judgment concerned a joint carriage dispute and group costs order applications in relation to a shareholder class action. The plaintiffs in three proceedings jointly sought consolidation; the carriage dispute was between the consolidated proceedings (Lidgett, Teoh and Jowene) run by Maurice Blackburn and William Roberts Lawyers, and the Kajula proceeding represented by Quinn Emanuel. In both, a group costs order (GCO) of 21% was sought. The defendant did not oppose the GCOs, nor the consolidation if a costs referee was appointed.

Justice Delany made the consolidation orders in light of the following being consistent with the overarching purpose:

• (a) the proceedings are of broadly similar nature;
• (b) significant efficiencies will be achieved;
• (c) each proceeding has progressed to the same stage (due to joint management by the Supreme Court of Victoria and the Federal Court);
• (d) the proceedings concern the same subject matter and the causes of action are very similar; and
• (e) the consolidation will enhance the prospects of resolution by way of negotiation or mediation.

The plaintiffs in the Jowene and Teoh proceedings sought to have their costs be costs in the consolidated proceedings, on the basis that the Teoh funding arrangements carried over, and the Jowene proceeding was commenced first. His Honour held it was reasonable to make such orders as it facilitated the efficient and costeffective resolution of issues in dispute.

His Honour was satisfied that the GCO was in the best interests of class members whichever matter was to proceed because:

• (a) it would result in a more favourable financial outcome than traditional funding plus legal costs;
• (b) 21% is a reasonable rate and sits below the rate in most other recent shareholder class actions;
• (c) it would provide transparency and certainty to class members and the plaintiffs; and
• (d) it would result in a fair distribution of the burden of legal costs across all class members.

In relation to which proceeding should go forward, his Honour noted that the decision depended on what was in the best interests of class members and compliance with the overarching purpose. His Honour noted that most factors were neutral including that the class membership and claim period was the same, all firms and counsel were suitably experienced, the financial position of firms to meet an order for adverse costs were sufficient, and provisions for security were acceptable.

The defendant submitted that an independent costs referee should be appointed at the expense of the plaintiffs’ solicitors to reduce duplication of costs and therefore the defendant’s possible liability for any such costs. His Honour agreed and held that with the provision of a costs referee, the risk of duplication of costs factor was also neutral. The need for the Lidgett proceeding to amend pleadings was considered to be neutral as it required only four weeks – a relatively short time.

Ultimately, his Honour ordered that the consolidated proceeding continue and the Kajula proceeding be stayed on the basis that the lawyers in the consolidated proceeding had worked cooperatively to narrow the issues in dispute at the carriage hearing, agree on the identity of the plaintiffs and arrangements for representation and cooperative funding, and thereby fulfilled their obligations under the Civil Procedure Act 2010 (Vic), “giv[ing] confiden[ce] in the ability of those involved to act efficiently and cooperatively in the best interests of group members” (at [131]).

Lidgett v Downer EDI Ltd [2023] VSC 574 

Supreme Court of Victoria, Delany J,
27 September 2023

Plaintiffs’ Solicitors: Maurice Blackburn; Quinn Emanuel Urquhart & Sullivan; Piper Alderman; William Roberts Lawyers
Defendant’s Solicitors: Gilbert + Tobin
Lidgett’s funder: CASL
Kajula’s funder: Regency VII Funding Pty Ltd

Austlii link

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