The AMP carriage battle closes another door on Quinn Emanuel

Application for leave to appeal from multiplicity / carriage judgment – Whether commencement of second or subsequent open class action constitutes abuse of process – Whether primary judge made errors in exercise of her discretion – Application granted in part, but appeal dismissed

This was an application for leave to appeal from the judgment of Ward CJ in Eq in Wigmans v AMP Ltd [2019] NSWSC 603, in which her Honour awarded carriage of the AMP shareholder class action to Maurice Blackburn, and permanently stayed all of the competing actions. There were three proposed grounds of appeal:

  • that the commencement of a second or subsequent open class action, when there is already an existing open class action on foot which is an appropriate vehicle and offers complete relief, such that the second or subsequent action is essentially duplicative, is contrary to Part 10 of the Civil Procedure Act 2005 (NSW) (CPA) and constitutes an abuse of process (proposed ground 1); and
  • even if that were not so, and it was appropriate for the primary judge to undertake a GetSwift-style ‘multifactorial’ analysis between the competing actions, her Honour made several errors in undertaking that analysis (proposed grounds 2 & 3).

The Court of Appeal unanimously:

  • President Bell granted leave to appeal in respect of proposed ground 1, but ultimately dismissed the appeal; and
  • refused leave to appeal in respect of proposed grounds 2 & 3.

President Bell gave the leading judgment, in which the other judges concurred (with Meagher and Payne JJA adding some brief observations of their own).

His Honour began by noting (at [7]ff]) that “there are a variety of ways in which multiple overlapping open class actions may be managed”, and that there is no ‘one size fits all’ response.

His Honour dealt first with proposed grounds 2 & 3 (at [27]-[41]), in respect of which he refused leave to appeal. His Honour found that, despite the terms in which they were expressed, those grounds did not raise an issue of principle (nor any question of public importance), but instead were “an attack on the primary judge’s attempt to make an assessment, necessarily imperfect and future looking, of the prospective returns to group members” from the competing actions, and that that attack was not persuasive.

It was also significant that the permanent stay of the Wigmans proceeding did not deny her the right to pursue her claim against the defendant – she was still a class member in the Maurice Blackburn proceeding, and could still pursue her claim via that proceeding, or otherwise opt out and pursue her own claim separately. His Honour said (at [39]):

The question of injustice for the purposes of any decision to grant leave to appeal, moreover, is to be assessed by reference to the interests of Ms Wigmans and not those commercial interests aligned with the funding of the proceedings initiated in her name.

His Honour then moved to consider proposed ground 1 (at [42]-[98]). At [44] his Honour said:

… the approach advanced by Ms Wigmans would operate in practice strongly to favour that party which is first to file open class action or representative proceedings, particularly where the class or group is relatively broadly defined. That is because that approach depends on a prima facie conclusion that subsequent proceedings are vexatious and oppressive and an onus cast on the proponents of subsequently commenced proceedings to demonstrate that the first commenced proceedings are “clearly inappropriate”. Whilst this formulation does not create a rigid first filed test, the operation of the onus and the difficulties of characterising proceedings as “clearly inappropriate” will mean that the onus will in practice be very difficult to discharge.

His Honour then:

  • accepted that the strong policy of the law is, and has always been, to avoid a multiplicity of proceedings, but that a multiplicity of proceedings can arise in a multitude of different ways and different contexts, and it was not, and has never been, the policy of the law that the first proceeding to be filed must be given some particular precedence – it simply means that where there is a multiplicity of proceedings, the Court must seek to resolve it in the most appropriate way;
  • noted that, although the order of commencement of proceedings is not irrelevant, its relevance does diminish the closer in time to each other that the respective proceedings are commenced;
  • distinguished cases dealing with multiplicity of proceedings decided in other contexts, on which the applicant had sought to rely;
  • endorsed (subject to one qualification noted below) the approach of the Full Federal Court in Perera v GetSwift Ltd (2018) 363 ALR 394; [2018] FCAFC 202, and agreed with the Full Court that the commencement of a second or subsequent representative proceeding was not, per se, vexatious or otherwise an abuse of process; and
  • drew additional support for his conclusions from s 58 of the CPA (which neither party had referred to), which provides that in deciding, inter alia, whether to grant a stay of proceedings the Court “must seek to act in accordance with the dictates of justice” (including, relevantly, the overriding purpose and, in s 58(2)(b), a lengthy list of other relevant criteria), and said that a principle of the kind for which the applicant contended would be contrary to the approach mandated by that section.

The one aspect of GetSwift with which his Honour took issue was the Full Court’s observation at [278]:

The Court should be astute to select the proceeding with the legal team that is most likely to achieve the largest settlement or judgment, ie the most experienced and capable. We accept that differentiating between legal firms or solicitors will often be difficult but the Court should not dodge that question if there is a basis for differentiation.

His Honour deprecated such an exercise and considered that it would “take the Court to territory into which it is inappropriate for it to travel” (at [98]).

(Postscript: On 5 November 2019 the applicant filed an application for special leave to appeal to the High Court.)

Case details

Wigmans v AMP Ltd [2019] NSWCA 243

  • New South Wales Court of Appeal, Bell P, Macfarlan, Meagher, Payne and White JJA, 8 October 2019 
  • Applicant’s Solicitors: Quinn Emanuel Urquhart & Sullivan;
  • Respondents’ Solicitors: Herbert Smith Freehills, Maurice Blackburn;
  • Applicant’s Funder: Burford

Read more about this case on Austlii: Wigmans v AMP Ltd [2019] NSWCA 243

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