Judge finds no need for contradictor in AMP class action; orders joint conduct by both applicants’ firms

Judge decides that the class action against AMP life insurance products will be a joint conduct of a consolidated proceeding by both applicants’ firms. The court also finds that that there is no current conflict and therefore no need for a contradictor, despite the slightly different framing of each case.

In this class action the respondents sought by way of interlocutory application that two proceedings arising from AMP life insurance products be consolidated (the ‘Stack proceeding’ and the ‘Winterton proceeding’). Justice Beach indicated a tentative view on the return date, which resulted in the applicants agreeing to consolidation where the solicitors from each proceeding jointly conduct the consolidated proceeding pursuant to a proposed litigation protocol.

His Honour approved the applicants’ proposal but two issues remained. First, the respondents pressed for a contradictor to be appointed to deal with the content of any proposed litigation protocol and to monitor its operation. Second, the respondents sought the costs of their interlocutory application.

The respondents submitted that a contradictor was necessary in circumstances where the causes of action in the respective proceedings were differently framed, with the outcome that the claims overlap in competing ways. The applicants in the Stack proceeding alleged that they had available to them an equivalent or substantially better insurance product to the AMP life products at a lower premium and, accordingly, they may only seek to recover any ‘excess premium’ paid. Contrastingly, the applicants in the Winterton proceeding alleged that their loss or damage was suffered in the form of the payment of ongoing service fees and commissions including in relation to AMP life products.

The respondents argued that a conflict of interest arose which wasn’t cured by the litigation protocol.

In rejecting that a contradictor should be appointed, his Honour held that the respondents failed to establish that the respective claims in fact created a conflict, that the applicants’ solicitors owed their normal duties to all class members under the proposed litigation protocol, and that if some relevant conflict later arose, the Court could address such a conflict in its supervisory jurisdiction.

Regarding costs, the respondents submitted that the applicant’s reticence to consolidate until his Honour had given his tentative view caused them to incur unnecessary costs in bringing the application, and the applicants should therefore bear the respondents’ costs of the interlocutory application.

His Honour also rejected that argument on the basis that the applicants did not act so unreasonably that they should be ordered to pay the respondents’ costs of the application.

The outcome, being joint conduct of a consolidated proceeding by both firms, was different to what the respondents sought, which was that the Stack proceeding and the Winterton proceeding be consolidated, but only one solicitor remain on the record for the applicants. That compromise, along with the difficulty of ordering consolidation of representative proceedings absent agreement by the parties and their lawyers, meant that his Honour considered that all parties’ costs should be their costs in the cause in the consolidated proceeding.

Case details

Stack v AMP Financial Planning Pty Ltd [2020] FCA 1839
Federal Court of Australia, Beach J, 21 December 2020;
Applicant’s Solicitors: Shine Lawyers / Piper Alderman;
Respondent’s Solicitors: King & Wood Mallesons;
Applicant’s Funder: Woodsford Litigation Funding 2 LLP and Woodsford Litigation Funding 5 LLP;
Austlii link: Accessible here.

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