Wigmans v AMP Limited [2021] HCA 7

What the court decided

After executives of AMP Limited (AMP), the first respondent, gave evidence to a Royal Commission in April 2018, five open class representative actions were brought against it within five weeks of each other [1], [54]–[55]. The appellant, Ms Marion Wigmans, commenced the first in the Supreme Court of New South Wales on 9 May 2018 [55]. Wileypark Pty Ltd, Mr Andrew Georgiou, Fernbrook (Aust) Investments Pty Ltd and Komlotex Pty Ltd each later sued in the Federal Court of Australia, and those cases were transferred to the Supreme Court [3], [55], [57].

Every representative plaintiff except Fernbrook moved for a permanent stay of the other proceedings, while AMP took no position beyond arguing that only one proceeding should continue [58]. The Fernbrook and Komlotex proceedings were consolidated into one, called here the consolidated proceeding [58].

The primary judge, Ward CJ in Eq, preferred Ms Wigmans' proceeding and the consolidated proceeding to those of Wileypark and Mr Georgiou because of their arrangements for security for costs [5], [64]. Giving most weight to a comparison of funding proposals, costs estimates and net hypothetical return, she found that the Komlotex no win, no fee model was likely to give group members the best return [59], [61]–[62]. She stayed the other three proceedings and let the consolidated proceeding continue [65].

The Court of Appeal, in which Macfarlan, Meagher, Payne and White JJA agreed with Bell P, held that the consolidated proceeding was not an abuse of process and upheld the primary judge's approach [67]. Ms Wigmans did not seek leave to challenge the abuse of process finding in the High Court [86], [98].

Gageler, Gordon and Edelman JJ, in joint reasons, formed the majority and concluded that the primary judge's exercise of the stay power did not miscarry [51], [53]. The High Court's formal orders, set out before its reasons and made as the majority proposed, were that the appeal be dismissed and that the appellant pay the respondents' costs of the appeal to the High Court [124]. Kiefel CJ and Keane J dissented in their own joint reasons and would have allowed the appeal [1], [16], [49].

The proceedings were brought under Part 10 of the Civil Procedure Act 2005 (NSW) (the NSW Act), which governs representative proceedings [51]. The majority located the Supreme Court's stay power in section 67 of the NSW Act, a provision of the case management Part (Part 6), and found that it overlaps with the inherent power to prevent abuse of process [72]–[73]. Their Honours held that nothing in that section, read with Part 6, confines the relevant considerations by a first-in-time rule or presumption, a conclusion the scheme of the representative proceedings Part reinforces [75]–[76]. They also held that the general law authorities on multiple suits do not support such a rule, and that it would be unworkable [86], [94], [104].

The majority said no one approach suits every case, and that multiplicity may be met by means other than, or as well as, a stay [106]. According to the majority, the order of filing remains a relevant consideration, though less so where the proceedings were started within a short time of each other [107]. Matters arising after filing may, and often will, also be relevant [108].

Where several firms of solicitors run competing open class proceedings with different funding models, and the defendant's interests are not differentially affected, the court hearing the applications must decide, by reference to all relevant considerations, which proceeding going ahead would best serve group members [52], [109]. Funding arrangements need not be weighed under section 67, although they may be; where the difference between them is stark, leaving it out would not accord with the dictates of justice under section 58, but they will not matter in every case and need not decide it [111]. That court must also bring to account conflicts of interest between group members and funders, and between a representative plaintiff and its funder, which no representative plaintiff had raised here [117].

Ms Wigmans' challenge to the primary judge's assumptions that the competing solicitors and funders were equal failed, because she had treated their experience and resources as a neutral factor at first instance [114]–[115].

The majority added that the primary judge's method was not the only one, and that an adversarial approach is to be preferred where there are complex considerations and real potential for conflicts of interest [118]. Their Honours suggested, as possibilities, that a court could appoint a special referee, an approach not explored in argument on appeal, or require the applicants to engage and fund a contradictor [119]–[120].

The minority reasoned that neither the NSW Act nor the inherent power authorises the Supreme Court to select the sponsor of representative proceedings [15]. On their Honours' approach, where an action is already pending on the same controversy and the same relief is available in it, a later action is prima facie vexatious and is stayed unless it offers a legitimate juridical advantage [42]–[43]. If the first proceeding is itself deficient, for example because its plaintiff cannot provide security for costs, it is the first that is stayed [43], [40]. Finding no such advantage, they would have permanently stayed the consolidated proceeding, with costs against those two companies [48]–[50].

Why it matters

Under the New South Wales provisions, filing first does not of itself secure the right to run the claim [75]–[76], [107]. In my view, the fate of Ms Wigmans' challenge to the assumptions suggests that a party that does not accept that rival teams and funders are equal in experience, resources, hours of work and prospects should say so at first instance [114]–[115].

The majority's reasons mention Part 4A of the Supreme Court Act 1986 (Vic) only in a footnote, among schemes similar to the New South Wales representative proceedings regime [51]. The minority referred in passing to the Victorian equivalent of that regime [28]. Readers should check the current text of the NSW Act and of that Victorian Part, and the Victorian position on staying competing group proceedings, since the stay power the High Court construed was section 67 of the NSW Act [72].

Numbers in square brackets are paragraph numbers of the judgment. This note summarises a decided case for education and is not legal advice. See how the notes are written.