High Court puts an end to AMP class action contest – Maurice Blackburn to run the case for shareholders.

HCA finds a first to file rule would be “unworkable” and lead to an “ugly rush” to the court door.

This was an appeal, by special leave, from the decisions of the courts below concerning the AMP shareholder class actions carriage dispute. In short, five separate, but overlapping, class actions were commenced against the first respondent (AMP) within a space of about five weeks. Following some interlocutory skirmishing, the primary judge undertook a detailed ‘multifactorial’ analysis, and awarded carriage of the proceeding to Maurice Blackburn, and stayed the remaining proceedings (Wigmans v AMP Ltd [2019] NSWSC 603). Although her Honour considered a number of factors in that analysis, the main determinant of the outcome was Maurice Blackburn’s ‘no-win / no-fee’ funding model which, in the absence of any funding commission payable to a third party litigation funder, she considered would most likely result in a higher net return to class members from any given settlement sum. An appeal from that decision by one of the unsuccessful parties was unanimously dismissed by the New South Wales Court of Appeal (Wigmans v AMP Ltd (2019) 373 ALR 323; [2019] NSWCA 243).

Before the High Court, the appellant’s primary argument was, in substance, that in the absence of any ‘juridical’ difference between multiple proceedings, the first filed proceeding should prevail, and that any subsequently filed proceedings were vexatious and an abuse of process; and further, that it was no part of the Court’s role to concern itself with the different funding models of the respective plaintiffs. The majority (Gageler, Gordon and Edelman JJ) rejected those arguments, and dismissed the appeal.

In summary, their Honours held:

  • there is no ‘one size fits all’ approach, and no rule or presumption that the first filed proceeding should prevail – instead, where the interests of the defendant are not differentially affected, it is necessary for the court to determine which proceeding going ahead would be in the best interests of class members, and the factors that might be relevant cannot be exhaustively listed and will vary from case to case (at [52]);
  • there is nothing in s 67 of the Civil Procedure Act 2005 (NSW) (CPA) (which confers a general power on the court to stay proceedings) that supports the contention that the considerations to which a court might have regard in exercising the power in that section are to be confined, or that the statutorily identified considerations (both mandatory and discretionary) applying to the exercise of the power are to be displaced, by reference to a first-in-time rule or presumption (at [75]);
  • there is nothing in Part 10 of the CPA (being the cognate of Part IVA of the Federal Court of Australia Act 1976 (Cth)) that expressly cuts down or is inconsistent with the broad power of stay under s 67 and, in particular, there is no provision in Part 10 that expressly or impliedly prevents the filing of a second representative proceeding against a defendant in relation to a controversy (at [76], [78]);
  • in representative proceedings, the court must be mindful of the interests of class members (at [82], [116]);
  • a first-in-time rule would be “unworkable” and lead to an “ugly rush” to the court door (at [86]);
  • there is no common law principle that, if complete relief is available in a proceeding on foot, it is prima facie vexatious and oppressive to commence a second proceeding dealing with the same controversy – instead, multiple suits are  to be resolved by the exercise of discretion informed by all the relevant circumstances (at [89], [94], [104]);
  • although there is no first-in-time rule, the order of filing is not irrelevant, although its relevance diminishes the shorter the lapse of time between the respective proceedings (at [107]);
  • the relevant factors cannot be listed exhaustively, and will vary from case to case, the fundamental question being what will be in the best interests of class members (at [109]);
  • in those circumstances, it was not inappropriate for the primary judge to consider and compare the respective funding models in the various proceedings (at [110]ff); and
  • having regard to the potential conflicts of interest, in future cases it may be appropriate for the court to appoint a referee or a contradictor to safeguard the interests of the unrepresented class members and/or to require that notice of the carriage dispute be given to class members (at [118]-[123]).

By contrast, the minority (Kiefel CJ and Keane J) held:

  • [n]either the CPA nor the Supreme Court's inherent power to prevent abuse of its processes authorises the Supreme Court to make a selection of the sponsor of representative proceedings” (at [15]);
  • unlike in foreign jurisdictions, such as the USA and Canada, where the relevant legislation expressly makes provision for carriage determinations to be made by the court, the CPA contains no such provision (at [35]);
  • the various stay applications before the primary judge (at [43]):

… ought to have been determined, not by the "multi-factorial analysis", but by reference to the principle that it is prima facie vexatious to commence an action if an action is already pending in respect of the same controversy in which the same relief is available. This position may be displaced by some juridical advantage in the later-in-time proceeding…

  • section 67 of the CPA (being the court’s general power to stay proceedings before it) did not contemplate or authorise the exercise undertaken by the primary judge, and thus (at [16]):

The courts below erred in failing to give effect to the prima facie entitlement of [the appellant] to insist upon the determination of her proceedings. The proceedings brought later in time offered no legitimate juridical advantage to group members or to the defendant. That being so, … the later-in-time proceedings [should be] stayed.

Case details

Wigmans v AMP Ltd [2021] HCA 7

High Court of Australia, Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ;
10 March 2021;
Appellant’s Solicitors: Quinn Emanuel Urquhart & Sullivan
Respondent’s Solicitors: Herbert Smith Freehills/Maurice Blackburn;
Appellant’s Funder: Burford;
Austlii Link: Accessible here

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