AMP class action sees competition between firms and between courts
The AMP shareholder class action has sparked rivalry between not only the plaintiff firms seeking carriage of the case, but also between the Federal and NSW Supreme Courts over where the matter should be run. This update covers the unsuccessful application by Federal Court applicants to transfer the Supreme Court proceeding to the Federal Court and a host of anti-suit injunction activity that ensued.
In this matter there were five competing class actions (four in the Federal Court, and one in the Supreme Court of New South Wales). Each of the four Federal Court applicants (who were also class members in the Supreme Court proceeding) applied in the Supreme Court proceeding to transfer that proceeding to the Federal Court. Those applications were dismissed (Wigmans v AMP Ltd (2018) 128 ACSR 534;  NSWSC 1045). At the same time, the plaintiff in the Supreme Court proceeding applied for an anti-suit injunction against the Federal Court applicants.
Both the plaintiff in the Supreme Court proceeding, as well as AMP, sought an order for their costs of the unsuccessful transfer applications against:
- each of the Federal Court applicants; or
- alternatively, their respective litigation funders.
On the other hand, some of the Federal Court applicants sought an order for costs against the plaintiff in the Supreme Court proceeding in respect of their costs of her abandoned application for an anti-suit injunction.
In the first judgment, Stevenson J held that the Court had no power to make an order for costs against the Federal Court applicants themselves, but nevertheless it did have power to make such an order against their respective litigation funders (and he considered that it was appropriate to do so).
The Federal Court applicants contended that, because they were class members in the Supreme Court proceeding, s 181 of the Civil Procedure Act 2005 (NSW) (being the equivalent of s 43(1A) of the Federal Court of Australia Act 1976 (Cth)), which effectively precludes the making of costs orders against class members, had the effect that no costs order could be made against them in that proceeding.
Section 181 is not in precisely the same terms as s 43(1A) – it provides that the Court “may not award costs against a person on whose behalf the proceedings have been commenced (other than a representative party) …”. The applicants for the costs orders contended, in effect, that each of the Federal Court applicants was ‘a representative party’ within the meaning of s 181 and therefore not entitled to its protection.
Despite the different wording between s 181 and s 43(1A), his Honour held that the two sections have the same meaning and effect; that the Federal Court applicants were not a ‘representative party’ in this proceeding (being the proceeding in which the costs orders were being sought), but instead were class members in this proceeding; and therefore, they were immune from a costs order under s 181.
Nevertheless, his Honour went on to conclude that, in the circumstances, it was appropriate to make a costs order against each of the Federal Court applicants’ litigation funders.
In the second judgment, his Honour determined that it was appropriate to make an order for costs against the plaintiff in the Supreme Court proceeding in respect of her abandoned application for an anti-suit injunction. His Honour said that both courts had “deprecated the course that was adopted” in this case of applying for an anti-suit injunction (at ), and that the application for the anti-suit injunction was “highly unlikely” to succeed (at ).
Wigmans v AMP Ltd (No 3)  NSWSC 162 and (No 4)  NSWSC 257
Supreme Court of New South Wales, Stevenson J, 26 February 2019 and 12 March 2019
Wigmans Plaintiff’s Solicitors / Funder: Quinn Emanuel Urquhart & Sullivan / Burford Capital;
Wileypark Applicant’s Solicitors / Funder: Phi Finney McDonald / IMF Bentham Ltd;
Georgiou Applicant’s Solicitors / Funder: Shine Lawyers / Augusta Ventures;
Fernbrook Applicant’s Solicitors / Funder: Slater & Gordon / Therium;
Komlotex Applicant’s Solicitors / Funder: Maurice Blackburn / ILFP;
Defendant’s / Respondent’s Solicitors: Herbert Smith Freehills
Andrew WatsonNational Head of Class Actions, Class actions, Melbourne
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