Victorian Supreme Court allows consolidation of ‘Treasury 2’ class actions

VSC delays appointment of costs referee, but holds that the proposed consolidation adequately protects and promotes the interests of class members, does not detriment of the interests of the defendant, and gives effect to the ‘overarching purpose’.

This decision arises in the ‘Treasury 2’ class actions brought by Maurice Blackburn (MB) (the ‘Napier’ proceeding) and Slater & Gordon (S&G) (the ‘Stallard’ proceeding) on behalf of shareholders of Treasury Wine Estates Ltd (TWE) who acquired TWE shares between 30 June 2018 and 28 January 2020. Both the proceedings were brought on behalf of an open class and are unfunded, with both firms indicating that they may seek a ‘group costs order’. The central issue before Nichols J was whether to permit the consolidation of the two proceedings and to appoint both MB and S&G as joint solicitors for the plaintiffs in the consolidated proceeding (as proposed by the plaintiffs). In this particular case, her Honour held that the proposed consolidation would properly protect and promote the interests of class members, would not be to the detriment of the interests of the defendant and would give effect to the ‘overarching purpose’.

There was no submission that the Court lacked the power to consolidate the proceedings, but rather whether it was appropriate to do so under s 33ZF of the Supreme Court Act 1986 (Vic) in this instance. TWE initially opposed the consolidation (preferring a stay of one of the proceedings) but later agreed to the consolidation but opposed joint representation. The plaintiffs submitted that the proposed mechanism for joint representation would ensure that class members’ interests “were properly, efficiently and effectively advanced in the litigation” (at [10]). In contrast, TWE submitted that joint representation would increase costs.

In discussing the general principle of the application of s 33ZF to the issue of resolving multiplicity, her Honour commented (at [20], footnotes omitted):

In exercising a power of this kind the court has a protective role in respect of group members, whose interests are to be given primary consideration. Where a proposal to resolve a multiplicity problem affects the defendant, its interests are also relevant. The interests of finders and law-firms acting in representative proceedings are not.

Her Honour also affirmed that the management of multiplicity issues “is quintessentially a case management issue to be answered by reference to the circumstances at hand” (at [24]). Whilst acknowledging that special leave to appeal the decision in Wigmans v AMP Ltd (2019) 373 ALR 323; [2019] NSWCA 243 (Wigmans) had been granted by the High Court, her Honour noted that in Wigmans consolidation was not sought by the parties and was not in issue (at [26]). Further, TWE had attempted to argue that previous Federal Court decisions regarding consolidation and multiplicity had wrongly (in light of the High Court’s decision in BMW Australia Ltd v Brewster (2019) 374 ALR 627; [2019] HCA 45) taken into account the interests of funders and law firms. Her Honour disagreed, holding that TWE had been unable to demonstrate this line of reasoning.

TWE also attempted to argue that based on the interests of funders and law firms being irrelevant, the proposal for joint representation ought to be rejected. This too was met with disapproval by her Honour, who held that line of reasoning to be flawed because (at [45]) “…it incorrectly assumed that were the Court to make an order in the present circumstances, the only purpose or rationale for doing so would be to advance the interests of the respective plaintiffs’ solicitor”. The proposed mechanism for consolidation was typical of other recent consolidated class action proceedings, involving the establishment of a litigation protocol and litigation committee, the retaining of one set of counsel and work and expenses to be shared between the two firms. It was also proposed for an independent costs referee to be appointed to provide reports to the court every six months on the issue of duplication of work.

TWE had also attempted to argue that consolidated proceedings led to lower returns to class members. This too was met with some scepticism by her Honour, who stated (at [58]): “It is not possible to draw from the material presented by [TWE], a conclusion that joint representation leads to lower returns to group members. There are too many variables in the equation to permit cases of joint and single representation to be compared on a like for like basis, at least on the material before me.”.

On the issue of costs, there was some controversy as to what would be considered ‘duplicated costs’ and ‘duplicated work’ under the litigation protocol (see [60]-[66]). Ultimately, her Honour accepted (at [67]) TWE’s submission that any leave for joint representation should make it clear that ‘duplicated work’ meant any work performed by reason of the appointment of two rather than one firm and that costs of the duplicated work are not to be borne by either TWE or class members, making orders to this effect.

TWE had also submitted that a carriage motion could also be readily decided on the papers and that the seeking of joint representation was disingenuous and threatening. Again, this was dismissed by her Honour who held (at [84]) that a disputed carriage motion would “likely entail considerable costs and the expenditure of the resources of the Court and the parties”. On the issue of class member choice, her Honour also held that the evidence before her did not support a conclusion either way as to a choice being exercised by class members.

Both S&G and MB identified Cate Dealehr and Liz Harris as potential costs referees. Although her Honour did not appoint a costs referee at the time of approving the consolidation, her Honour allowed each of Ms Dealehr and Ms Harris to provide a note as to their costs and methodology to the Court, following which orders would be made for the appointment of one of them. It is also worth noting that TWE had sought access to the reports of the costs referee. This was not granted by her Honour, who considered that it was not appropriate to grant TWE access on a rolling basis, instead allowing for access to them “when and if the costs payable by the defendant is in issue” (at [103]).

 

Stallard v Treasury Wine Estates Ltd [2020] VSC 679
Supreme Court of Victoria, Nichols J, 15 October 2020;
Plaintiffs’ Solicitors: Maurice Blackburn and Slater & Gordon; 
Defendant’s Solicitors: Herbert Smith Freehills;
Plaintiffs’ Funder: N/A
Austlii link: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2020/679.html?context=1;query=[2020]%20VSC%20679%20;mask_path=

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