Kajula Pty Ltd v Downer EDI Ltd [2024] VSCA 236 (15 October 2024)

Last Updated: 15 October 2024

SUPREME COURT OF VICTORIA COURT OF APPEAL

S EAPCI 2023 0121

KAJULA PTY LTD (ACN 065 474 713)	Applicant
v
DOWNER EDI LIMITED (ACN 003 872 848)	First Respondent
JUSTINE LIDGETT	Second Respondent
CAMERON LIDGETT	Third Respondent

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JUDGES:	MACAULAY, LYONS and ORR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	8 May 2024
DATE OF JUDGMENT:	15 October 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 236
JUDGMENT APPEALED FROM:	[2023] VSC 574 (Delany J)

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PRACTICE AND PROCEDURE – Group proceedings – Four group proceedings – Three proceedings consolidated – Multiplicity dispute between consolidated proceeding and other group proceeding – Judge awarded carriage to consolidated proceeding and stayed other proceeding – Whether judge entitled to take into account cooperation of legal advisers leading to formation of consolidated proceeding – Whether by taking into account and/or giving prominence to cooperation judge failed to have regard to role of competition – Judge entitled to take into account cooperative behaviour and competitive behaviour in process leading to determination of multiplicity dispute – Whether judge failed to take into account or give appropriate weight to other factors – Whether in light of particular findings judge should have concluded that best interests of group members were served by awarding carriage to consolidated proceeding – No real prospect of success – Leave refused.

APPEALS – Exercise of power under s 33ZF of Supreme Court Act 1986 – Applicable standard of appellate review – Whether judge’s decision discretionary – House v The King (1936) 55 CLR 499 standard applied – Application for leave related to matter of practice and procedure – No substantial injustice established – Leave refused.

Supreme Court Act 1986, s 33ZF; Civil Procedure Act 2010, ss 7, 8, 9.

House v The King (1936) 55 CLR 499, applied; GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 414 ALR 635; Wigmans v AMP Ltd [2021] HCA 7; (2021) 270 CLR 623; Perera v GetSwift Ltd [2018] FCAFC 202; (2018) 263 FCR 92; Fei v Hexin Pty Ltd [2024] VSCA 158; Southernwood v Brambles Ltd [2019] FCA 1021; (2019) 137 ACSR 540; Fuller v Allianz Australia Insurance Ltd [2021] VSC 581; (2021) 65 VR 78; Stallard v Treasury Wine Estates Ltd [2020] VSC 679, discussed.

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Counsel
Applicant:			Mr C Withers SC with Ms R Zambelli and Ms S Scott
Second and Third Respondent:			Ms R Doyle SC with Mr D Fahey and Mr DV Murphy
Solicitors
Applicant:			Quinn Emanuel Urquhart & Sullivan
Second and Third Respondent:			Maurice Blackburn

MACAULAY JA
LYONS JA
ORR JA:

Introduction and summary

1. This application concerns a multiplicity or carriage dispute about which of two open group proceedings should have the ability to pursue a securities class action against Downer EDI Ltd (‘Downer’). By reasons delivered on 27 September 2023 and orders made on 6 October 2023, a judge of the Trial Division granted leave for a consolidated group proceeding (the ‘consolidated proceeding’) to progress to trial and permanently stayed a competing group proceeding in which Kajula Pty Ltd (‘Kajula’) is the lead plaintiff (the ‘Kaluja proceeding’).^[1] For convenience, we will refer to the consolidated proceeding and the Kajula proceeding together as the ‘competing proceedings’.
2. Kajula now seeks leave to appeal (and if leave is granted, to appeal) against the judge’s orders, raising five proposed grounds of appeal. The first respondent, Downer, filed a notice of intention not to respond or contest the application for leave to appeal. The second and third respondents, Justine and Cameron Lidgett (the ‘Lidgetts’ or ‘the respondents’) are the lead plaintiffs in the consolidated proceeding.
3. Proposed ground 1 is the primary ground, which challenges the judge’s ultimate finding. It provides:
   1. The learned primary judge erred in determining [the Kajula proceeding] be stayed and that the best interests of the group members dictate that the consolidated proceeding brought by the Second and Third Respondents go forward to trial (Reasons at [148]).
4. The other proposed grounds of appeal are, in substance, ‘particulars’ of the challenge in proposed ground 1. First, Kajula challenges the judge’s consideration of, and reliance upon, the fact that the consolidated proceeding was formed from three separate group proceedings and that the legal advisers (and parties) in those proceedings cooperated to bring about the consolidated proceeding. In summary, Kajula submits that:

(a) the judge erred because cooperation to achieve consolidation — which it submits was the determinative factor in the judge’s decision — was irrelevant to the determination of the multiplicity dispute;^[2] and

(b) by giving prominence to cooperation, the judge failed to have regard to the role that competition between the competing proceedings (and in particular Kajula’s role within that competitive dynamic) played in obtaining better outcomes for the group members.^[3]

5. We will refer to these issues collectively as the ‘cooperation and competition issue’. Kajula contends that this issue raises matters of general importance to the determination of multiplicity disputes because the Reasons create a precedent that encourages a ‘race’ by plaintiff firms to consolidate group proceedings, with the effect that competition between such firms is discouraged to the detriment of group members.
6. Second, Kajula submits that the judge failed to consider and/or give appropriate weight to other relevant factors, namely:

(a) there was likely to be a duplication of costs in the consolidated proceeding due to the involvement of two law firms (the ‘duplication of costs issue’);^[4]

(b) that in the consolidated proceeding the more expensive of the two law firms involved (Maurice Blackburn) would be allocated 70 per cent of the work (the ‘reasonableness of costs issue’);^[5]

(c) that Kajula held shares in Downer for a large part of the claim period whereas the Lidgetts did not (the ‘suitability of lead plaintiff issue’);^[6] and

(d) at the time of the multiplicity dispute, the statement of claim in the Kajula proceeding was filed and ready to proceed; the statement of claim was not similarly ready in the consolidated proceeding and there was no explanation for why this was so (the ‘readiness to proceed issue’).^[7]

7. Third, Kajula asserts that, in light of particular findings of the judge made in relation to the duplication of costs issue, the suitability of lead plaintiff issue and the readiness to proceed issue, the judge should have concluded that the best interests of group members were served by the Kajula proposal (the ‘ground 4 issue’).^[8]
8. By notice of contention, the Lidgetts submit that the judge erred in his treatment of another relevant factor, namely the superior experience and capabilities of Maurice Blackburn and William Roberts, the two law firms involved in the consolidated proceeding. The Lidgetts assert that the judge erred in finding there was no basis for differentiating between the consolidated proceeding and the Kajula proceeding on the basis of the comparative experience and capabilities of the legal teams in those proceedings. The Lidgetts assert that the judge erred in failing to treat this as a material factor, the weight of which was sufficient to render it appropriate for the Court to have ordered that the consolidated proceeding go forward and the Kajula proceeding be stayed.
9. For the reasons that follow, we would refuse leave to appeal. Given this application relates to an interlocutory judgment on a matter of practice and procedure, Kajula must establish that it will suffer substantial injustice if the judge’s orders remain unreversed. We are not satisfied that any such substantial injustice has been made out. None of the proposed grounds have a real prospect of success. Further, we are not satisfied that the Reasons create any precedent or otherwise raise matters of general importance of the kind asserted by Kajula: rather they are an example of a judge considering and weighing all the relevant factual matters in resolving a multiplicity dispute in accordance with established principle.

Structure of these reasons

10. In these reasons, we will address:

(a) the background facts and the Reasons;

(b) the applicable standard of appellate review;

(c) whether leave should be granted; and

(d) why each proposed ground has no real prospect of success and the notice of contention therefore need not be considered.

Background facts

11. The underlying claim in each competing proceeding is that Downer allegedly misreported revenue it generated from a power contract with one of its major customers, AusNet, between 1 April 2020 and 31 December 2022. Downer subsequently restated its financial reports, issued corrective market announcements and revised its earnings guidance for the year ended 2023. Group members who acquired Downer shares between 23 July 2019 and 27 February 2023 are alleged to have suffered losses as a consequence of this misreporting.
12. As a result of Downer’s alleged misreporting, four open class actions or group proceedings were commenced against Downer: three proceedings were commenced in the Federal Court of Australia (the ‘Federal Court’); and one proceeding was commenced in the Supreme Court of Victoria (the ‘Supreme Court’).
13. The Federal Court proceedings were as follows:

(a) on 31 March 2023, the law firm Piper Alderman commenced proceeding NSD 293 of 2023 on behalf of the plaintiff Jowene Pty Ltd atf Biro Citer Souvenirs Pty Limited Pension Fund (‘Jowene’) (the ‘Jowene proceeding’);

(b) on 16 May 2023, the law firm William Roberts commenced proceeding NSD 427 of 2023 on behalf of the plaintiffs Timothy Hui Chong Teoh and Peter Hermann Eckardt (‘Teoh-Eckardt’) (the ‘Teoh proceeding’); and

(c) on 6 June 2023, the law firm Quinn Emanuel Urquhart & Sullivan (‘Quinn Emanuel’) commenced proceeding NSD 520 of 2023 on behalf of Kajula (ie the Kajula proceeding).

14. In the Supreme Court, on 4 May 2023, Maurice Blackburn commenced proceeding S ECI 2023 01835 on behalf of the Lidgetts (the ‘Lidgett proceeding’).
15. These four proceedings contained several common issues, which gave rise to a ‘multiplicity’ issue. That is because in each proceeding it was alleged that:

(a) a common defendant, Downer, engaged in similar conduct over a similar timeframe; and

(b) the conduct of Downer was misleading or deceptive, breached Downer’s continuous disclosure obligations and involved false or misleading statements, variously in breach of ss 674(2), 674A(2), 1041E and 1041H of the Corporations Act 2001 (Cth), s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth) and s 18 of the Australian Consumer Law, being sch 2 to the Competition and Consumer Act 2010 (Cth).

16. Pursuant to the Protocol for Communication and Cooperation between the Supreme Court of Victoria and Federal Court of Australia in Class Action Proceedings dated 5 June 2019 (the ‘Protocol’), the four proceedings were jointly case managed by Halley J of the Federal Court and Delany J of the Supreme Court. The Protocol reflects many aspects of the Civil Procedure Act 2010 (the ‘CPA’), including the following:

(a) ‘[t]he overarching objective of the Protocol is to ensure access to justice and to facilitate, in the interests of all stakeholders, the efficiency and effectiveness of class action proceedings in circumstances where multiple proceedings are brought in competing Courts and across more than one jurisdiction’;

(b) in the application of the Protocol, ‘Courts should aim to promote the efficient and timely coordination and administration of competing class action proceedings in the most convenient and appropriate jurisdiction having regard to’ several matters, including ‘the management of the competing class action proceedings in ways that are proportionate to the size and nature of the respective classes, the complexity of the issues, the nature of the proceedings, and the number of jurisdictions involved’ and ‘[a]t all times, the interests of justice are paramount’;

(c) after hearing from the parties, the judges from each Court will confer to determine ‘the appropriate management of the competing class actions, including where considered appropriate for the facilitation of the just, efficient, timely and cost-effective resolution of the issues in dispute in the competing class actions’; and

(d) the respective Courts ‘should encourage, and where necessary direct if there is power to do so, the parties to make the necessary applications to the other Court(s) to facilitate implementation of this Protocol; and should encourage the parties to act so as to promote the objectives and aims of this Protocol wherever possible’.

17. On 7 June 2023, in a joint sitting of the Federal Court and the Supreme Court, Halley J and Delany J made orders directing the representative plaintiffs in each proceeding (the ‘representative parties’) to exchange statements of position and confer with the aim of resolving the multiplicity issue (the ‘7 June conferral orders’).
18. On 14 June 2023, the representative parties each filed a statement of position. In substance, each representative party indicated that it would seek orders permanently staying each of the other competing proceedings.^[9] The statements of position disclosed their respective proposals for costs and funding arrangements. We will address the development of the costs proposals in further detail below.
19. On 30 June 2023, the representative parties each served revised statements of position. In their revised statements of position, each of Jowene, Teoh-Eckardt and the Lidgetts stated that an in-principle agreement had been reached between them to consolidate and that the Jowene and Teoh proceedings would seek to transfer to the Supreme Court to effect the consolidation. In the Lidgetts’ revised statement of position, the Lidgetts sought that the Kajula proceeding be permanently stayed. In Kajula’s revised statement of provision, Kajula sought that each of the other proceedings be permanently stayed.
20. As a result of these revised statements of position, on 7 July 2023, the representative parties filed the following:

(a) Jowene and Teoh-Eckardt filed applications for orders transferring their proceedings to the Supreme Court, noting their intention to seek consolidation with the Lidgett proceeding following the transfer;

(b) Kajula filed an application in the Kajula proceeding seeking orders that the Jowene and Teoh proceedings be permanently stayed;

(c) the Lidgetts filed a summons to consolidate with the Jowene and Teoh proceedings; and

(d) the Lidgetts and Teoh-Eckardt filed applications for leave to intervene in the Kajula proceeding and for a permanent stay of the Kajula proceeding.

21. On 12 July 2023, the representative parties and Downer attended a hearing before Halley and Delany JJ sitting jointly, during which timetabling orders were made for the hearing of the respective carriage motions commencing on 28 August 2023.
22. After that hearing, Kajula took the following steps:

(a) on 14 July 2023, Kajula sought leave to intervene in the Jowene, Teoh and Lidgett proceedings and orders that those proceedings be permanently stayed;

(b) on 18 July 2023, Kajula filed an amended originating application and statement of claim; and

(c) on 28 July 2023, Kajula filed an application to transfer the Kajula proceeding to the Supreme Court.

23. Between 31 July 2023 and 1 August 2023, each of the representative parties served their evidence and primary submissions on the carriage motions.
24. On 7 August 2023, the Jowene, Teoh and Kajula proceedings were transferred from the Federal Court to the Supreme Court.
25. On 11 August 2023, Kajula offered to provide security for Downer’s costs in the amount of $5.5 million to be paid, in several tranches of deposits, into an interest-bearing controlled money account with Macquarie Bank in the names of Gilbert + Tobin (Downer’s solicitors) and Quinn Emanuel, with the tranches being paid upon the Kajula proceeding reaching certain milestones.
26. On 14 August 2023, Downer served its evidence and submissions in response to the multiplicity dispute. Downer submitted that it was ‘agnostic’ as to which proceeding was selected, provided that its legitimate interests in relation to costs were adequately protected. It said that if the Court determined that the proposed consolidated proceeding should go forward, the Court should make orders providing for the appointment of an independent costs referee charged with inquiring and reporting on whether any duplicated work was being performed, with the costs of the costs referee to be borne by the plaintiffs in the consolidated proceeding.
27. It is convenient at this stage to briefly canvass the development of the costs and funding proposals for the consolidated proceeding and the Kajula proceeding. The judge described the process as ‘essentially a tender process between competing law firms’.^[10] Kajula takes issue with this description before this Court. The original statements of position, filed on 14 June 2023, stated that:

(a) the Lidgetts would seek a group costs order (‘GCO’) under s 33ZDA(1) of the Supreme Court Act 1986 (the ‘Act’) at a rate of 22 per cent of any award or settlement;

(b) Teoh-Eckardt had a litigation funder (CASL Funder Pty Limited (‘CASL’)) and a related entity, CASL Management, would have a management role. These entities would claim a joint funding fee set at either 15 or 25.5 per cent of gross recoveries (dependent upon settlement timeframes). Alternatively, CASL and CASL Management would seek the rate proposed to be charged by another firm or funder in the carriage motions; and

(c) Kajula would seek an order equivalent to a GCO under s 33ZDA(1) of the Act pursuant to s 33ZF(1) of the Federal Court of Australia Act 1976 (Cth) at a rate of 22 per cent.

28. In its revised statement of position (filed on 30 June 2023), Kajula indicated it would seek an order equivalent to a GCO at a rate of 21 per cent.^[11] At that time, the Lidgetts confirmed that they continued to seek a GCO at a rate of 22 per cent. However, by 7 July 2023, the Lidgetts had reduced their GCO to a rate of 21 per cent.
29. On 21 August 2023, Kajula and the Lidgetts filed their reply evidence and submissions in relation to the carriage motions.^[12] Relevantly, the Lidgetts set out the key elements of the original proposal for the proposed consolidated proceeding (‘original consolidation proposal’) as follows:

(a) the Jowene proceeding would step out of the carriage contest by consolidating with the Lidgett proceeding, with its costs to be costs in the proposed consolidated proceeding;

(b) the Lidgetts and Teoh-Eckardt would be the representative plaintiffs, represented by Maurice Blackburn with William Roberts retained as Maurice Blackburn’s agent;

(c) a new ‘harmonised’ consolidated statement of claim would be drafted;

(d) Maurice Blackburn and William Roberts would share the financial value of the legal work in a 70/30 split;

(e) Maurice Blackburn would obtain day-to-day instructions from the Lidgetts, with William Roberts acting as a conduit, subject to CASL Management’s right to give day-to-day instructions;

(f) Maurice Blackburn and CASL would fund the proceeding; and

(g) the costs of any settlement distribution would be included in the GCO rate of 21 per cent (this meant the costs proposals of the Kajula proceeding and the proposed consolidated proceeding were relevantly identical).

30. On the afternoon of Friday 25 August 2023, Maurice Blackburn provided the Court and the parties with proposed orders that the lead plaintiffs of the proposed consolidated proceeding would seek at the hearing of the carriage motions scheduled for the following Monday 28 August 2023. The proposed orders reflected the original consolidation proposal. They included orders requiring the lead plaintiffs to provide security for Downer’s costs on the same terms as Kajula’s proposal (see [25] above) and requiring Downer to file and serve its defence by no later than 12 weeks after service of the consolidated statement of claim.
31. At about the same time on 25 August 2023, Quinn Emanuel provided the Court and the parties with Kajula’s proposed orders to be sought at the hearing.
32. However, later on 25 August 2025 (around 5:45pm) Maurice Blackburn served a fourth affidavit of a principal of Maurice Blackburn, Andrew Watson. The affidavit contained a revised proposal for the proposed consolidated proceeding: the Lidgetts would be the only lead plaintiffs; the documentation regulating arrangements between the plaintiffs, the firms and CASL would be simplified; and a revised agency retainer agreement between Maurice Blackburn and William Roberts would be agreed (the ‘amended consolidation proposal’).
33. Shortly thereafter on 25 August 2023, Maurice Blackburn provided the Court and the parties with amended proposed orders reflecting the amended consolidation proposal. On 26 August 2023, Maurice Blackburn served the parties with an amended summons, which replicated in substance the amended proposed orders.
34. Prior to the hearing on 28 August 2023 (around 9:30 am), Maurice Blackburn provided the Court and the parties with further amended proposed orders, including proposed orders for the appointment of a costs monitor to inquire into and report on any duplication of costs, as Downer had sought.
35. On 28 August 2023, the judge heard the carriage motions. The judge made orders in the Lidgett, Jowene and Teoh proceedings to the effect that:

(a) the Lidgett proceeding be consolidated with the Jowene proceeding and the Teoh proceeding; and

(b) costs incurred in the Lidgett, Jowene and Teoh proceedings be costs in the consolidated proceeding.

36. As noted above, on 27 September 2023, the judge handed down the Reasons, which determined that the Kajula proceeding be stayed and the consolidated proceeding go forward to trial. On 6 October 2023, orders were made in both proceedings to reflect the Reasons.

The Reasons

37. The Reasons addressed the three substantive applications before him: the applications to consolidate the Lidgett proceeding, the Jowene proceeding and the Teoh proceeding; the applications for a GCO in the competing proceedings; and the multiplicity or carriage dispute. The judge commenced by setting out a summary of the competing proceedings and their procedural history, including the fact that the proceedings were jointly managed by the Federal Court and the Supreme Court prior to cross-vesting to the Supreme Court.^[13]
38. The judge then addressed the consolidation application.^[14] In doing so, he set out the development of the ultimate consolidation proposal particularly focusing on the original consolidation proposal and the amended consolidation proposal.^[15] The judge referred to the power of the Court to consolidate proceedings under r 9.12 of the Supreme Court (General Civil Procedure) Rules 2015 (the ‘Rules’) and provisions of the CPA. Most relevantly, the judge referred to the requirement in s 8(1) of the CPA that in exercising its powers, the Court seeks to give effect to the overarching purpose, namely ‘to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute’.^[16] He also referred to the parties’ and practitioners’ obligations in respect of civil proceedings pursuant to ss 20, 22, 23, 24 and 25 of the CPA, which included the obligation to cooperate in the conduct of such proceedings.^[17]
39. The judge noted that he had ordered consolidation of the Lidgett, Jowene and Teoh proceeding at the hearing. He said he regarded consolidation as being consistent with the overarching purpose in the CPA and with r 9.12(1) of the Rules:
    19. ... Significant efficiencies are achieved by providing for consolidation, and consolidation of three proceedings previously in competition with each other will enhance the prospects of non-judicial resolution through negotiation or mediation.
    20. To adopt the language of r 9.12, consolidation of the three proceedings is ‘desirable’. The consolidation of competing group proceedings is to be encouraged. It has the capacity to avoid or in this case to reduce the scope of multiplicity disputes, to prevent unnecessary costs being incurred and to reduce delays. To dismiss the Jowene and Teoh proceedings, rather than to make consolidation orders, as in Kajula’s submission should be done, would send the wrong message to parties who in the future might be engaged in multiplicity disputes. To determine the consolidation applications in the way that Kajula contends is not ‘desirable’. To do so may act as a deterrent to others in like situations to act in a manner consistent with their obligations in the CPA.
    21. In this case the consolidation of the three proceedings is the product of conferral between the parties and legal practitioners following the orders made on 7 June 2023, which conferral I infer has been engaged in by those persons in good faith and in a manner consistent with the overarching obligations to which I have referred. The consolidation orders contended for meet the criteria in r 9.12 and are appropriate.
40. The judge determined that Kajula was entitled to its costs thrown away by reason of the amended consolidation proposal being put forward on the eve of the 28 August hearing.^[18]
41. The judge then addressed the GCO applications.^[19] The judge noted that the GCO at the rate of 21 per cent that was now sought both by Kajula and by the Lidgetts in the consolidated proceeding was ‘the product of what was essentially a tender process between competing law firms’.^[20] The judge referred again to the 7 June conferral orders, noting that the conferral process was ‘designed to encourage each party to put forward their best proposal, the proposal that would best advance the interests of group members’.^[21] He then set out the development of the GCO rate proposals:

(a) in the original statements of position, filed on 14 June 2023, both Kajula and the Lidgetts indicated they would seek a GCO rate of 22 per cent (though Kajula’s proposal was expressed to be inclusive of all costs up to and including distribution of settlement or judgment amounts);

(b) in the revised statements of position, filed on 30 June 2023, the Lidgetts maintained the GCO rate of 22 per cent, while Kajula amended its rate to 21 per cent; and

(c) it was not until 7 July 2023 that the Lidgetts revised their position to seek a GCO rate of 21 per cent.^[22]

42. After referring to the advantages of making a GCO, the judge concluded the rate of 21 per cent was reasonable as it reflected rates ordered recently in this Court in similar shareholder class actions. The judge noted that the rate could be revisited by the Court during the course of the proceeding pursuant to s 33ZDA(3) of the Act. The judge concluded that, regardless of which of the competing proceedings was selected to continue, it was appropriate or necessary to ensure that justice is done to order a GCO rate of 21 per cent.^[23]
43. The judge began his consideration of the multiplicity dispute by referring to the power to order a stay under s 33ZF of the Act.^[24] That section provides that, in respect of any group proceeding under Part 4A of the Act, ‘the Court may, of its own motion or on application by a party, make any order the Court thinks appropriate or necessary to ensure that justice is done in the proceeding’.
44. Referring to this Court’s reasons in National Australia Bank Ltd v Pathway Investments Pty Ltd (‘Pathway’)^[25] the judge observed that the power to make orders pursuant to s 33ZF of the Act must be exercised in accordance with the CPA.^[26] The judge set out the following paragraphs of Pathway which ought be repeated here:
    55. The powers of the Court to make orders under s 33ZF of the Supreme Court Act and r 32.07 of the Supreme Court (General Civil Procedure) Rules must now be exercised in accordance with the Civil Procedure Act. One purpose of the Civil Procedure Act is ‘to reform and modernise the laws, practice, procedure and processes relating to civil proceedings in the Supreme Court’ (s 1(1)(a)). Another is to provide for an overarching purpose in the conduct of civil proceedings (s 1(1)(c)), ...
    56. Section 8(1) of the Civil Procedure Act requires the Court to seek to give effect to this overarching purpose in the exercise and interpretation of ‘any of its powers’, including its inherent, implied or statutory jurisdiction (s 8(1)(a)) and its common law and procedural rules or practices (s 8(1)(c)). Under s 9(1), in making any order or giving any direction in a civil proceeding, the Court is required to further the overarching purpose by having regard to a number of specified objects. ... Section 9(2) specifies relevant considerations ... These provisions apply to the exercise of the Court’s power with respect to group proceedings in ch 4A of the Supreme Court Act.^[27]
45. The judge referred to other principles for the determination of multiplicity disputes, as agreed between the parties, namely:

(a) the commencement of a subsequent representative proceeding against the same defendant is not of itself vexatious or an abuse of process;

(b) however, a multiplicity of proceedings may be inimical to the administration of justice;

(c) the task for the Court in resolving multiplicity is to determine which arrangement (including which proceeding should go ahead if one or more is stayed) would be in the best interests of group members;

(d) the task is an inherently evaluative one having regard to all relevant considerations;

(e) while previous cases have identified factors that may be relevant, those factors cannot be listed exhaustively and will vary from case to case; and

(f) factors that may be relevant to the analysis include which proceeding was issued first (ie the order of filing), the competing funding proposals, the proposals for security for costs, the nature and scope of the cause of actions advanced, the conduct of the representative applicants to date, the experience of the practitioners and the availability of resources.^[28]

46. It implicit from the judge’s reference to the above principles and the passages quoted above from Pathway that the judge understood that, while the assessment under s 33ZF of the Act of what is ‘appropriate or necessary to ensure that justice is done in the proceeding’ is to be undertaken primarily with regard to group members’ best interests, regard must also be had to the objectives and purposes of the CPA. This is also generally consistent with the observations of the majority of the High Court in Wigmans v AMP Ltd (‘Wigmans’).^[29]
47. The judge observed that the application before him was ‘finely balanced’.^[30] The competing proceedings had much in common — both were open class representative proceedings; both advanced the same causes of action; the plaintiffs in each case were represented by firms or a combination of firms with experience in shareholder class actions; the firms in question had funded the costs of the proceedings to date on a no win — no fee basis; the lead plaintiffs in each proceeding sought a GCO fixed at the same rate; acceptable proposals to provide security for Downer’s costs had been advanced in each proceeding; and the lead plaintiffs in each case were represented by experienced counsel teams.^[31] The judge considered that many factors which commonly enable judges to distinguish between alternative group proceedings were ‘neutral’ between the competing proceedings.^[32] By this, we understand the judge to have meant that there was no way to distinguish between the consolidated proceeding and the Kajula proceeding on the basis of those factors.
48. The judge also set out the differences between the competing proceedings said by the parties to be relevant to his decision, namely the different levels of experience of the legal practitioners, the duplication of costs issue (arising from the consolidated proceeding having two firms of solicitors), the different funding arrangements and funding resources, the suitability of the lead plaintiff issue and the readiness to proceed issue.^[33] We will address the judge’s consideration of the factors that are most relevant to this application.
49. First, the judge addressed the duplication of costs issue^[34] and, in short, found that the involvement of two firms (in the consolidated proceeding) compared to one firm (in the Kajula proceeding) was ultimately a neutral factor.^[35]
50. In reaching this view, the judge accepted that the risk of cost duplication did not arise in the Kajula proceeding but there was a ‘complexity that would affect the conduct of the [consolidated proceeding] and which may require the management of the Court to address’.^[36] The judge agreed with Downer’s submission that if the consolidated proceeding were to go forward, Downer’s costs liability should not exceed what would be owed to a single firm.^[37] Downer had proposed the following orders in the event the consolidated proceeding went forward:

(a) costs incurred as a result of two law practices acting rather than one shall not be recoverable (from Downer or group members);

(b) an independent costs referee is to be appointed to conduct periodic inquiries and confidentially report to the Court in relation to any duplication of work; and

(c) the cost of the independent costs referee is to be borne by the plaintiffs.^[38]

51. The judge said that if the consolidated proceeding was selected to proceed, it was appropriate to make orders of this type except for the final proposed order. The judge’s view was that it was not appropriate that the costs burden of the costs referee be borne by the plaintiffs or group members, and that it should instead be borne by the law firm or firms involved.^[39]
52. We will refer to the substance of these orders as the ‘costs monitor orders’. The costs monitor orders were contained in the judge’s orders made on 6 October 2023 in the consolidated proceeding.
53. The judge then made the following observation concerning the policy matters at play when courts are considering the cost implications of a consolidated proceeding:
    82. As a matter of policy, noting the desirability of consolidation where there are multiplicity issues, it would be undesirable to treat the involvement of more than one firm following consolidation as a negative when compared to a competing proposal which relies on one firm only as the provider of the legal services. With appropriate safeguards such as orders which involve the ongoing engagement of a costs referee at the expense of the plaintiffs’ solicitors, the cost risk arising from the involvement of two firms is appropriately managed. With orders as proposed by Downer in place, the involvement of two firms rather than one is a neutral factor in the determination of the carriage dispute.
54. Second, the judge considered the suitability of lead plaintiff issue,^[40] finding that it weighed in favour of the Kajula proceeding. However, the judge did not regard this as a ‘material’ factor when weighing the competing proposals.^[41]
55. Kajula had submitted its suitability as lead plaintiff was reinforced by its significant share purchases in Downer, totalling $272,545.13, across a large part of the claim period. By contrast, the Lidgetts had acquired shares for approximately $15,000 on 5 December 2022, which was near the end of the claim period.^[42]
56. It is apparent from the following extracts of the Reasons that the judge agreed with aspects of both the Lidgetts’ and Kajula’s submissions on this issue:
    117. It is in the interests of group members to have all issues determined. While I recognise that there is a risk that the trial judge may require the appointment of sample group members, I consider the risk identified by Kajula from the Lidgett plaintiffs’ purchases not spanning the entire period as both a low risk and a risk commonly dealt with as part of case management of such proceedings. I do not consider that the difficulties identified by Kajula regarding the lack of retainer of Maurice Blackburn by Mr Teoh are substantive.
    118. I accept that in a carriage contest as finely balanced as this one, the simplicity and the certainty regarding the determination of issues of the Kajula plaintiff whose own case covers the entire period is a factor that weighs in favour of the Kajula proceeding going forward. I do not however regard it as a material factor when weighing the competing proposals.
57. At the hearing before this Court there was a discussion about what was meant by the judge’s characterisation of this factor as not ‘material’. Counsel for Kajula agreed that this description meant that the judge considered the factor was ‘not ... influential’ rather than ‘not a relevant factor’. We agree and will proceed on that basis.
58. Third, the judge addressed a submission from the Lidgett plaintiffs that the fact agreement had been reached to consolidate the proceedings was indicative of a greater level of experience on the part of the law firms involved in the consolidated proceeding than the law firm representing Kajula.^[43] The judge did not accept this submission. However, the judge considered that the parties and practitioners involved in the consolidated proceeding had a ‘proven track record’ of cooperation, consistently with their CPA obligations, which was a ‘material factor’ weighing in favour of that proceeding.^[44] The judge said this track record gave him confidence in the ability of those involved in the consolidated proceeding to act efficiently and cooperatively in the best interests of group members going forward.^[45] The judge observed that consolidation ‘drastically reduced’ the number, scope and complexity of issues involved in the carriage motions. It also enabled the carriage motions to be heard in one day at the Supreme Court; the alternative was three hearing days and a joint sitting of the Supreme and Federal Court.^[46]
59. Fourth, the judge considered a number of other factors that he regarded as neutral factors, including the acceptable security for costs proposals in each proceeding, the comparable cost estimates, the fact that each of the competing proceedings was ready to proceed (ie the readiness to proceed issue) and the order of filing of each proceeding.
60. As to the readiness to proceed issue, the judge stated that while Kajula’s statement of claim required no amendments, the Lidgetts sought only four weeks to file and serve a consolidated writ and statement of claim. The judge accepted the Lidgetts’ submission that four weeks was a relatively short period of time for the statement of claim to be ready, with the result that the readiness to proceed issue was ‘neutral’.^[47]
61. As to the order of filing, the judge noted that the Jowene proceeding was commenced first and the Kajula proceeding was commenced last.^[48] The judge referred to the fact that there is no rule or presumption that the first filed proceeding should be preferred.^[49] The judge then recorded Kajula’s submission that it had ‘led the way’ in many aspects and stated his conclusion as follows:
    139. Kajula submitted that the statement of claim filed in the Kajula proceeding, being the last pleading filed, was more comprehensive than those filed in some of the other proceedings. It was submitted that Kajula was the first to seek the lower GCO at 21%, was the first to include the costs of settlement administration within the GCO, and that it led the way with the security for costs proposal. Taking into account these matters and balancing them against the fact that Kajula issued its proceeding last, albeit within a relatively short time of the issue of the other proceedings, I regard the order of filing as a neutral factor.
62. In light of this analysis, the judge turned to his disposition of the multiplicity dispute.^[50] The judge commenced by summarising his findings with respect to each factor that was said to provide a basis to differentiate between the competing proceedings. Those findings are set out in short compass below:

(a) there was no basis for differentiation between the relative experience of the solicitors and barristers making up the legal teams;

(b) although there was a risk of duplicated costs, with appropriate orders for the independent monitoring of costs, the involvement of two firms in the consolidated proceeding was ultimately a neutral factor;

(c) the financial standing of the firms and the funders involved was not a basis to differentiate between the two proceedings;

(d) the simplicity and certainty regarding the determination of the issues in the Kajula proceeding (where the lead plaintiff’s case covered the entire period of the claim) was a factor, but not a material factor, weighing in favour of the Kajula proceeding going forward;

(e) the individual characteristics and circumstances of the lead plaintiffs (or director/s of a lead plaintiff) was not a relevant consideration; but even if these matters were relevant, they were neutral in this case;

(f) the extent of any bookbuild was a factor, but not a material factor, to distinguish between the competing proceedings; and

(g) the following factors were neutral: the security for costs proposals, respective cost estimates, the readiness of the competing proceedings to proceed and the order of filing.^[51]

63. The judge then referred to the s 9(1) of the CPA, pursuant to which the Court, in making any order in a civil proceeding, shall further the overarching purpose in civil litigation by having regard to the objects set out in ss 9(1)(a)–(f).^[52] Those objects include the efficient conduct of the business of the Court, minimising any delay between the commencement of civil proceedings and their listing for trial beyond that reasonably required for any necessary interlocutory steps and the timely determination of civil proceedings. In that context, the judge’s concluding paragraphs on the multiplicity dispute are as follows:
    145. The track record of the parties to the Lidgett consolidated proceeding is one which includes the early settlement of a significant part of the multiplicity dispute by agreement between three of the parties involved in that dispute, a factor specifically referred to in s 9(1)(b). That settlement has promoted the efficient conduct of the business of the Court, see s 9(1)(c). It has facilitated the efficient use of judicial resources, a matter to which reference is made in s 9(1)(d). It has also been instrumental in facilitating the timely determination of the civil proceeding because it has meant that it has not been necessary for this Court to sit together with the Federal Court to resolve the multiplicity dispute.
    146. I consider the proven track record of the practitioners and the lead plaintiffs in the Lidgett consolidated proceeding of cooperating and resolving their differences leading to the Lidgett consolidated proceeding as a material factor giving confidence that in the future those involved will act in the best interests of group members, and will discharge their overarching obligations pursuant to the CPA, likely resulting in savings of time and costs and, as a result, increasing the prospect of a more favourable return to group members.
    147. Section 9(2) of the CPA lists various matters to which the Court may have regard when making an order or giving a direction in a civil proceeding pursuant to s 9(1). The actions taken by the Lidgett plaintiffs and their advisers align favourably with three of the matters to which regard may be had:

    (a) the extent to which the parties have complied with any mandatory or voluntary pre-litigation processes;

    (b) the extent to which the parties have used reasonable endeavours to resolve the dispute by agreement or to limit the issues in dispute;

    (c) the degree of promptness with which the parties have conducted the proceeding, including the degree to which each party has been timely in undertaking interlocutory steps in relation to the proceeding; ...

    148. When all of these matters are taken into account, the best interests of the group members dictate that it is appropriate to make an order pursuant to s 33ZF of the Act that the Kajula proceeding be stayed and that the Lidgett consolidated proceeding go forward to trial.

The applicable standard of appellate review

64. At the outset, it is appropriate to address the applicable standard of appellate review for the decision that is the subject of this application.
65. In the recent case of Moore (a pseudonym) v The King,^[53] the High Court gave the following explanation of two standards of appellate review, as well as the approach to determining when each of those standards apply:

Two standards of appellate review of first instance judicial determinations are of present relevance, namely what has come to be referred to as the correctness standard and a ‘House v The King’ standard involving judicial restraint affording latitude to a trial judge. Under the correctness standard, the appellate court determines for itself the correct outcome while making due allowance for such ‘advantages’ as may have been enjoyed by the judge who conducted the trial or hearing. With House v The King, appellate intervention is limited to circumstances where the trial judge: acted upon a wrong principle, or allowed extraneous or irrelevant matters to affect the decision; mistook the facts; failed to take into account some material consideration; or made a decision that was unreasonable or plainly unjust. These grounds for intervention contemplate the appellate court accepting that intervention is not warranted even though the members of the appellate court may have decided the matter differently to the judge at first instance, a circumstance that is reflected in the language adopted by the Court of Appeal in this case when it described the trial judge's conclusion as ‘open’ to his Honour.

The basis for intervention identified in House v The King was expressed to be dependent upon the subject matter of the appeal, being the exercise of a judicial ‘discretion’. House v The King was an appeal against the imposition of a sentence of three months imprisonment for an offence under the Bankruptcy Act 1924 (Cth). While what constitutes a ‘discretionary decision’ in this context can be ambiguous, in essence it refers to the circumstance where the decision maker is allowed ‘some latitude as to the choice of the decision to be made’. A determination of which standard of review is applicable does not depend on whether the reasoning to be applied is evaluative or in respect of which reasonable minds may differ. Instead, the determination turns on whether the legal criterion to be applied ‘demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v The King standard applies’.^[54]

66. It is therefore necessary to assess whether the decision of the judge was a discretionary decision (for which an error of a kind identified in House v The King^[55] (‘House’) must be demonstrated) or a decision applying a legal criterion that demanded a unique outcome (which falls to be determined in accordance with the ‘correctness standard’ as explained in Warren v Coombes^[56] and Fox v Percy^[57]).
67. An example of the latter type of decision was the decision under consideration in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (‘GLJ’).^[58] In GLJ, the trial judge had declined to exercise a power conferred by s 67 of the Civil Procedure Act 2005 (NSW) to permanently stay a damages claim in relation to alleged sexual abuse. Section 67 provided:

Subject to rules of court, the court may at any time and from time to time, by order, stay any proceedings before it, either permanently or until a specified day.

68. On appeal, the Court of Appeal, acting on a concession by the respondent, treated the trial judge’s decision as discretionary in nature. It allowed the appeal on the basis that the discretion had miscarried and exercised the power to grant a permanent stay.
69. The High Court held that the decision was not discretionary. The application for the stay had been brought on the basis that the trial would be necessarily unfair or so unfairly and unjustifiably oppressive as to constitute an abuse of process. This was the legal criterion to be applied. While the answer to the question of whether the trial would be necessarily unfair or so unfairly and unjustifiably oppressive as to constitute an abuse of process involved an evaluative process, the law tolerated but one correct answer.^[59] A court must not permit such a trial to be held.^[60]
70. Kiefel CJ, Gageler and Jagot JJ emphasised that the power to order a stay in s 67 of the Civil Procedure Act 2005 (NSW) was of sufficient breadth ‘to provide “a means by which that Court can regulate its processes and manage cases before it” and, accordingly, encompasses decisions which may be characterised as discretionary’.^[61] But if ‘the juridical foundation’ for an exercise of the power is that the trial will be necessarily unfair or involve such unfairness or oppression as to constitute an abuse of process, the decision whether to exercise the power is not discretionary.^[62] That is because there is only one legally permissible answer, rather than ‘differences of opinions which, within a given range, are legitimate and reasonable answers’.^[63]
71. In this proceeding, the judge made orders pursuant to s 33ZF of the Act that stayed the Kajula proceeding and imposed conditions on the consolidated proceeding going forward to trial, including that a costs referee be appointed. Kajula submits the correctness standard applies to the review of the judge’s decision to make those orders. This is because the judge was required to decide a question of fact — which of the competing proceedings going forward was in the best interests of group members. No discretion was involved in that determination of fact, although discretion could ‘come in’ at the subsequent stage, when the judge was deciding whether certain conditions should be attached to the proceeding that was to go forward, such as the appointment of a costs referee. Kajula also relied upon the decision of Middleton J in Furniss v Blue Sky Alternative Investments Ltd (admin apptd) (rec and mgr apptd) (in liq).^[64] In that case, Middleton J expressed his preference for the correctness standard to apply to a review of a decision made in a carriage dispute, on the basis that such a decision does not involve an exercise of discretion but instead is of ‘a broad and evaluative kind’.^[65]
72. For the following reasons, we reject Kajula’s submissions. We find that the judge’s decision to stay the Kajula proceeding and permit the consolidated proceeding to go forward on the terms imposed was a discretionary decision, with the result that the applicable standard of appellate review is the House standard.
73. First, the words of empowerment in s 33ZF are that the Court ‘may ... make any order the Court thinks appropriate or necessary to ensure that justice is done in the proceeding’. Used in an Act passed after the Interpretation of Legislation Act 1984, the word ‘may’ is to be construed as meaning ‘that the power so conferred may be exercised, or not, at discretion’.^[66]
74. Second, like the statutory power to order a stay that was considered in GLJ, the power in s 33ZF is a broad power that provides the Court with a means to regulate its processes and manage cases before it, and therefore encompasses decisions that may be characterised as discretionary.
75. Third, in adjudicating on the applications for a stay, the legal criterion that the judge was required to apply was what he regarded to be ‘appropriate or necessary to ensure that justice was done’, viewed through the prism of the best interests of group members.^[67] This was not a legal criterion that demanded a unique outcome. Instead, the law tolerated a range of potential outcomes as to what was appropriate or necessary to ensure that justice is done.
76. The breadth of the potential outcomes in multiplicity disputes has been confirmed by a majority of the High Court in Wigmans and the Full Federal Court in Perera v GetSwift Ltd (‘GetSwift’)^[68] and Klemweb Nominees Pty Ltd v BHP Group Ltd (‘Klemweb’).^[69] As the majority noted in Wigmans, ‘there is no “one size fits all” approach’ and multiplicity may be addressed by a ‘by a variety of means instead of, or in addition to, staying one or more of the proceedings’, including, among other things, ordering consolidation, de-classing one or more proceeding or holding a joint trial of all proceedings.^[70]
77. Further, in Klemweb, Middleton and Beach JJ concluded that because such decisions ‘involve weighing up incommensurable and conflicting considerations’, the result may be ‘a range of potential solutions with no one right answer’.^[71] Lee J reached a very similar view.^[72] The Court in GetSwift also set out the ‘variable approaches’ to multiplicity of representative proceedings that had been taken by different judges in the Federal Court.^[73] As a result, adopting the language of GLJ (and the cases cited therein) the authorities reveal that although differences in judicial opinion may arise as to the appropriate course in a multiplicity dispute, ‘within a given range’ each is a ‘legitimate and reasonable’ outcome.^[74]
78. Fourth and as a result, decisions about how to resolve particular multiplicity disputes have been characterised as discretionary in nature in Wigmans,^[75] GetSwift,^[76] Klemweb,^[77] and Bellamy’s Australia Ltd v Basil.^[78] While the classification of those decisions is not determinative of the characterisation of the present decision, we consider it is nonetheless relevant.
79. In all these circumstances, we are satisfied that the judge’s decision on the competing stay applications involved the exercise of a discretion to which there was no one unique answer: rather the legal criterion informing the exercise of that power tolerated a range of outcomes, each of which was in the best interests of group members. This characterisation accords with the weight of authority on this question, namely Wigmans, Klemweb and GetSwift referred to above.
80. We reject Kajula’s attempt to artificially sever the judge’s decision into a non-discretionary component (the question of what was in the best interests of group members) and a subsequent discretionary component (the question of whether ancillary orders such as an order for the appointment of a costs referee should be made). The decision of the judge to stay the Kajula proceeding was inextricably linked with the decision to impose conditions on the manner in which the consolidated proceeding could move forward. The judge’s answer to the question of what was appropriate or necessary to ensure that justice is done, viewed through the prism of the best interests of group members, was to create an outcome that involved both staying the Kajula proceeding and imposing conditions on the manner in which the consolidated proceeding could go forward.
81. Finally, in our view there are good policy reasons why decisions of this kind do not warrant appellate intervention on the basis of the correctness standard. Decisions in multiplicity disputes relate to matters of practice and procedure, and case management. They do not prevent the unsuccessful lead plaintiff from pursuing a claim for loss. They are precisely the sorts of decisions where the decision maker should be allowed ‘some latitude as to the choice of the decision to be made’, rather than requiring consideration by members of an appellate court as to whether they would have decided the matter differently to the judge at first instance.^[79]
82. We therefore proceed on the basis that the House standard applies. On this standard, an error in the exercise of a discretion will be made out if:

(a) the judge acts upon wrong principle;

(b) the judge allows extraneous or irrelevant matters to guide them;

(c) the judge mistakes the facts;

(d) the judge does not take into account some material consideration; or

(e) notwithstanding no specific error of the kind set out in (a)–(d) above has been established, if the result, upon the facts, is unreasonable or plainly unjust the appellate court may infer that there has been a failure to properly exercise the discretion.^[80]

The grant of leave

83. This Court may only grant leave to appeal under s 14C of the Act if satisfied that the proposed appeal has a real (as opposed to fanciful) prospect of success.^[81] Even if satisfied that the appeal would have a real prospect of success, the Court may nevertheless refuse leave in the exercise of its residual discretion, ‘such as when no substantial injustice will be done if the decision at first instance stands, or the order sought to be appealed against is one of practice and procedure’.^[82]
84. In Fei v Hexin Pty Ltd^[83] this Court recently highlighted the ‘tight rein’ to be applied to appeals on matters of practice and procedure, saying:

[T]here is a clear legislative policy against interlocutory appeals; appeals from discretionary decisions are determined by the principles in House; a tight rein is to be applied to appeals on matters of practice and procedure so that, in addition to demonstrating sufficient doubt concerning the original decision, to obtain leave to appeal the applicant must show that substantial injustice will be caused if the decision is allowed to stand; and these requirements are to be regarded as ‘stringent’. The ‘tight rein’ is mediated through the exercise of the residual discretion to refuse leave even if a real prospect of success in establishing error is demonstrated.^[84]

85. Kajula concedes that the judge’s order concerns a matter of practice and procedure. However, it contends that it will face substantial injustice if the judge’s decision is permitted to stand because despite acquiring shares in Downer to the value of $272,545.13, it is now unable to pursue its claim against Downer with the lawyers of its choice. Instead, Kajula will simply remain a group member in a group proceeding run by two other firms through a structure that is complicated and risky because of the suitability of the lead plaintiff issue and the duplication of costs issue.
86. The injustice is compounded, Kajula says, in circumstances where it was the one to put forward the most competitive proposal, which the Lidgetts simply matched.
87. There are two responses to this argument. The first is that Kajula is a member of the consolidated proceeding, and its claim as a shareholder is therefore being progressed and prepared as part of the ‘open class’ consolidated proceeding. The second is that the judge’s order staying the Kajula proceeding does not prevent Kajula from prosecuting its claim against Downer using its own lawyers it if wishes to. Kajula may choose to opt-out of the ‘open class’ consolidated proceeding and issue its own proceeding (at its own expense). Whilst we do accept that the fact that Kajula is not able to pursue its claim against Downer as an open class proceeding with the lawyers of its choice may cause Kajula some detriment, we are not satisfied that the decision has resulted in substantial injustice to Kajula.
88. As noted above, Kajula also submits that its application for leave raises questions of public importance concerning the Court’s policy in relation to multiplicity disputes.
89. This Court has made plain that the fact that an application for leave to appeal raises issues of public importance may require greater diligence to assess whether the appeal has a real prospect of success.^[85] The relevance of issues of public importance, if any, to the residual discretion is far from clear. However, it is unnecessary to consider this issue further in this application, because we are not satisfied that the application raises an issue of public importance.
90. Kajula argues that the Reasons create a precedent that elevates the fact of cooperation (in particular, cooperation as part of a court-ordered conferral process) over the multifactorial analysis that is required, and which will substantially undermine competition among proponents to class actions to the detriment of group members generally. Indeed, Kajula submits that that the Reasons create a ‘major incentive’ for law firms, funders and their clients to ‘race’ to consolidate group proceedings, in the knowledge that if they can match any other competing proposal by a single law firm, then they will prevail just by virtue of agreeing to consolidate. This, it says, will discourage parties who are not among the consolidating parties from continuing to contest carriage. In this connection, Kajula refers to the Southern District of New York decision of Re Razorfish Inc Securities Legislation, which is said to illustrate the parlous position in the United States, where ‘[p]eople run to the courthouse’ to file actions.^[86]
91. The Reasons do not provide a precedent of the kind asserted by Kajula. The Reasons are but an example of a judge considering and weighing all the relevant factual matters in resolving a multiplicity dispute in accordance with established principle. So much is abundantly clear from the very fact-specific bases that Kajula gives in its various proposed grounds for contending that, in this case, the judge erred in giving weight to the cooperation shown by the Lidgett parties. We shall return to this issue below.
92. Notwithstanding that we would refuse a grant of leave to appeal on the basis that the judge’s orders concern a matter of practice and procedure, do not occasion substantial injustice and do not give rise to issues of public importance, we will also address why the proposed grounds also have no real prospects of success. We will do this by addressing each of the issues raised by the proposed grounds of appeal that we have identified in the introduction.

Cooperation and competition issue: proposed grounds

93. As set out above, Kajula submits that:

(a) the judge erred because cooperation to achieve consolidation — which it submits was the determinative factor in the judge’s decision — was irrelevant to the determination of the multiplicity dispute; and

(b) by giving prominence to cooperation, the judge failed to have regard to the role that competition between the competing proceedings (and in particular Kajula’s role within that competitive dynamic) played in obtaining better outcomes for the group members.

94. As to cooperation, the relevant proposed grounds are 2, 3(a), 3(b), 5(c), and 5(d) which provide:
    2. By relying upon the fact of consolidation to ultimately award carriage to the Second and Third Respondents (Reasons at [20] and [133]), the learned primary judge failed to perform the task required by the Court in resolving multiplicity: namely to determine what was in the best interests of group members and then make orders consistent with that decision.
    3. In carrying out the evaluative exercise required of the Court, his Honour erred:

    (a) in attributing any weight to the consolidating parties having cooperated to achieve consolidation (Reasons at [130]–[131], [133] and [146]), whereas that should have been a neutral factor in circumstances where (i) the need for future cooperation only arose due to the Second and Third Respondents’ appointment of two law firms; and (ii) the alternative proposal advanced by the Applicant involved the use of only one law firm;

    (b) in finding at [133] and [146] of the Reasons that the practitioners and lead plaintiffs in the consolidating proceeding had a proven track record of cooperating and resolving their differences, thereby giving his Honour confidence that they would in future act efficiently and in the best interests of group members when:

    (i) the proposal advanced by the consolidating parties for the two months before the hearing was unworkable and had to be rewritten on the eve of the hearing after the Applicant identified its deficiencies long beforehand and which resulted in the Second and Third Respondents being ordered to pay the Applicant’s costs thrown away by reason of the proposal being rewritten (Reasons at [13]–[14];

    (ii) without explanation, the Second and Third Respondents had failed to provide the Court with a proposed consolidated pleading so that the Court could consider the pleading at the multiplicity hearing.

    5. The learned primary judge further erred in failing to have regard to the facts that:

...

(c) the problems identified by the Applicant with the Second and Third Respondents’ proposal were only rectified on the weekend before the hearing, and only after the Applicant had raised them; and

(d) the product of the consolidating parties’ cooperation (being the proposal advanced by the Second and Third Respondents during the period ordered by the Court for conferral between the parties):

(i) was considerably worse than their amended proposal reframed on the eve of the hearing of the multiplicity contest;

(ii) was not in the best interests of group members, having regard to the alternative proposal contemporaneously (and consistently) advanced by the Applicant; and

(iii) produced a proposal with which it would have been contrary to group members’ interests for the Applicant to have joined.

95. As to competition, the relevant proposed grounds are 3(d), 3(e), 5(a), and 5(b) which provide:
    3. In carrying out the evaluative exercise required of the Court, his Honour erred:

...

(d) in finding that the GCO rate ultimately proposed in the competing proceedings was ‘the product of what was essentially a tender process between competing law firms’ (Reasons at [33]ff) when no tender process had taken place, the Applicant had put forward the most competitive terms and the Second and Third Respondents simply matched their proposals;

(e) in failing to attribute appropriate weight to the Applicant’s role in procuring a lower GCO rate (that was inclusive of settlement administration costs) and a preferrable security for costs proposal (Reasons at [139]);

5. The learned primary judge further erred in failing to have regard to the facts that:

(a) competition between the consolidated proceeding and the Applicant’s proceeding produced:

(i) the best GCO rate; and

(ii) better terms and conditions for group members.

(b) the Applicant had put forward the most competitive terms and the Second and Third Respondents had simply matched those terms;

Cooperation and competition issue: contentions

Kajula’s primary contention: cooperation leading to consolidation is irrelevant

96. Kajula’s primary contention is that cooperation between competing parties to achieve consolidation (pursuant to a conferral order or otherwise) is irrelevant to the determination of a multiplicity dispute. The consequence of this submission is that by taking this matter into account, the judge would have committed an error of a kind identified in House.
97. Kajula identifies three reasons why cooperation leading to consolidation is irrelevant in a multiplicity dispute.

(a) First, this is not a factor that appellate jurisprudence has previously identified as relevant.

(b) Second, treating cooperation leading to consolidation as a relevant factor is to confuse the Court’s role in overseeing compliance with the overarching purpose in the CPA with the Court’s function in determining what is in the best interests of group members. Kajula contends that the Reasons disclose a policy which favoured the efficient conduct of the proceedings from the Court’s perspective, rather than from the perspective of the best interests of group members.

(c) Third, cooperation to resolve matters such as the terms of the proposed arrangements for the funding of the case, budgets, the allocation of work between firms and the allocation of funding between funders means parties and practitioners are no longer vying for carriage by putting forward competitive terms, which benefits group members.

98. As to the last reason, Kajula submits that conferral orders (such as the 7 June conferral orders) require parties and their legal advisers to confer and agree on matters that can change the course of a class action in a way that is ‘not transparent’ or competitive. Kajula submits that this kind of conduct would be of ‘questionable lawfulness in almost any other commercial context’, yet was justified by the judge’s conclusion that the provisions of the CPA encourage cooperation among parties to civil litigation.
99. As we have explained above, Kajula asserts that the judge’s decision may encourage rushed consolidations and discourage multiplicity disputes, which would have the effect of eliminating competition among group proceedings, to the detriment of group members. Conversely, the judge’s decision is said to establish a precedent for parties and practitioners who decline to consolidate to be punished.

Kajula’s secondary contention: if relevant, cooperation was at best a neutral factor

100. Kajula’s secondary or fallback position is that the cooperation that led to consolidation should have been a ‘neutral’ factor in the resolution of the multiplicity dispute. Cooperation prior to consolidation is only in the best interests of group members if it produces the best outcome for them. This was not the case here, because the product of the cooperation was an ‘unworkable’ proposal that had to be rewritten on the eve of the hearing before the judge, leading to an order that the Lidgetts pay Kajula’s costs thrown away by reason of the proposal being rewritten.
101. The original consolidation proposal had been said to be ‘unworkable’ for at least three reasons:

(a) the arrangements giving effect to the management and funding of the proceeding were complex, giving rise to the potential for disputes as to the settlement strategy to be adopted;

(b) there would have been four lead plaintiffs in circumstances where a solicitor-client relationship only existed between Maurice Blackburn (as the solicitor on the record) and the Lidgetts (and not between Maurice Blackburn and Mr Teoh and Mr Eckardt); and

(c) the more expensive law firm (Maurice Blackburn) was to perform a greater percentage of the work (ie 70 per cent). Kajula maintains this criticism before this Court, because the division of work remained the same in the amended consolidation proposal.

102. Kajula submits that it was competition, not cooperation, between the competing proceedings that produced better outcomes for group members in this case. In this regard, Kajula points to its role in driving the consolidating parties’ proposal to provide security for Downer’s costs and to match the 21 per cent GCO rate Kajula had proposed, in circumstances where the GCO rate in the first retainer between the Lidgetts and Maurice Blackburn was 25 per cent. Had Kajula not continued to adopt a different position to that adopted in the other proceedings, group members would have ended up with a worse outcome.
103. Kajula submits that the judge elevated the fact of cooperation above all other factors, including the four factors that favoured the continuation of the Kajula proceeding: it was ready to proceed, there was no risk of cost duplication, there were benefits of Kajula as lead plaintiff and the Kajula proceeding involved only one firm and one funder (whereas the consolidated proceeding’s proposal was more complex). There needed to be some consideration of why a consolidated proposal of two firms was more advantageous than a proposal involving one firm. No such analysis was undertaken by the judge: rather, at [82] of the Reasons, the judge considered it would be undesirable to treat the involvement of more than one firm following consolidation as a negative, at least where appropriate safeguards, such as the costs monitor orders, were in place.^[87]
104. The result of the judge’s approach, Kajula submits, was that the parties who agreed to consolidate obtained carriage of the proceeding purely because of their agreement to consolidate, and to then match core elements of Kajula’s proposal. The judge did not balance the fact of cooperation against the supervisory and protective role of the Court over absent group members, in circumstances where competition has a direct effect on group members insofar as it affects the price at which services are offered. General obligations of cooperation in the conduct of civil proceedings under the CPA should not displace the important public policy benefits of competition among proponents of group proceedings in this Court: but this is the effect of the Reasons.

Cooperation and competition issue: Consideration

105. As is evident, Kajula’s submissions did not address the proposed grounds in turn but were more general in nature. That is why we have organised the proposed grounds by issue.

Cooperation

106. By way of introduction, we reject a threshold assertion by Kajula that it was not put on notice that the judge was considering resolving the multiplicity dispute by having regard to the cooperation between the consolidating parties. In this context, counsel for Kajula submitted that ‘if it had been raised, we would have had a much more fulsome debate’ in relation to the ‘implications of conferral orders and what they do to competition’. The respondents referred the Court to portions of the Lidgetts’ written case and oral submissions that they submit did raise that cooperation was a relevant factor for the judge to consider. Having regard to the transcript in particular, it is evident that the judge was invited to consider the cooperation that led to the consolidated proceeding when determining the multiplicity dispute. Further, counsel for Kajula confirmed that he was not advancing a natural justice argument in this Court to the effect that Kajula was deprived of an opportunity to address a point.
107. Turning to Kajula’s substantive arguments, we do not accept Kajula’s contention that cooperation that leads to the consolidation of certain competing proceedings is irrelevant to the determination of a multiplicity dispute.
108. Contrary to Kajula’s assertion raised by proposed ground 2, the judge did not rely upon the bare fact of consolidation to ultimately award carriage to the consolidated proceeding.^[88] Instead, the judge emphasised the proven track record of the parties and practitioners in the consolidated proceeding leading to the resolution of aspects of the multiplicity despite. While there is a power to consolidate competing proceedings without the parties’ consent, consolidation is more commonly facilitated by the cooperation and consent of the parties.^[89] It is in this context that cooperation leading to consolidation of certain competing proceedings may be of relevance to the determination of a multiplicity dispute.
109. The relevance of cooperation to the determination of multiplicity disputes has a basis in both statute and the authorities. As to statute, most relevantly, s 9(2)(b) of the CPA allows the Court to consider past cooperative conduct, being the ‘extent to which the parties have used reasonable endeavours to resolve the dispute by agreement or to limit the issues in dispute’.^[90]
110. As to the authorities, we refer in particular to the reasons of Murphy J in Southernwood v Brambles Ltd (‘Brambles’),^[91] where it was the evidence of prior cooperation, which gave rise to ‘an expectation that cooperation will continue’,^[92] that ultimately led his Honour to order consolidation of competing proceedings despite the fact that it was not agreed to.^[93] So too, in both Fuller v Allianz Australia Insurance Ltd (‘Fuller’)^[94] and Stallard v Treasury Wine Estates Ltd,^[95] Nichols J granted leave for joint solicitors to act on the record in a consolidated proceeding. It is implicit in the reasons of Nichols J in each of these cases that value ought be placed upon the capacity of legal practitioners to cooperate in the context of consolidations of group proceedings by consent. Recognition of the value of cooperation leading to consolidation is also implicit in the observations of the Full Federal Court in GetSwift.^[96]
111. It is useful to say something about the meaning of ‘cooperation’ in this context. Properly understood, cooperation in this context refers to representative plaintiffs and their lawyers in competing group proceedings working together in order to resolve or reduce the matters for determination in a multiplicity dispute in a timely and cost-effective manner. The timely and efficient resolution of claims is in the best interests of group members and the interests of justice more generally.
112. It may be accepted that the cooperative behaviour in this case was the past conduct of the parties. But the past conduct of representative plaintiffs may be a relevant factor in determining a multiplicity dispute.
113. Past cooperation in the settling of a multiplicity dispute or aspects of it may, logically, be viewed as an indicator of future cooperation in the proceeding more generally. A record of past cooperative behaviour by a representative plaintiff increases the likelihood that that party will cooperate to resolve the proceeding and any interlocutory issues arising within it in a timely and efficient manner, ultimately in the best interests of group members. There is no reason in logic or principle why consideration of representative plaintiffs’ prior conduct should not also encompass the conduct of lawyers acting for them. This is because representative plaintiffs in group proceedings, for the most part, act through their lawyers. In Brambles, Murphy J considered the conduct of both the representative plaintiffs and their lawyers in determining the multiplicity dispute.^[97]
114. Recognising that the factors that may be relevant for determining a multiplicity dispute cannot be exhaustively stated, and will vary from case to case,^[98] we are satisfied that cooperation, understood in this sense, may be a relevant factor in the resolution of multiplicity disputes.
115. Moreover, we reject Kajula’s contention that by recognising cooperation as a relevant factor, the judge confused the Court’s role in overseeing compliance with the CPA and determining which proposal was in group members’ best interests. As set out above, the Court’s power under s 33ZF of the Act is to ‘make any order the Court thinks appropriate or necessary to ensure that justice is done in the proceeding’.^[99] The authorities have recognised that by focusing on the ‘best interests of group members’ when resolving multiplicity disputes, the Court’s focus is directed to the interests of justice in a manner that is ‘entirely consonant’ with the task of facilitating the overarching purpose in civil litigation (stipulated by the CPA and its equivalents).^[100]
116. As to the relationship between cooperation and competition in the context of multiplicity disputes, as submitted by counsel for the Lidgetts, cooperation and competition are not necessarily binary options. Rather, both cooperative behaviour and competitive behaviour — which we will refer to further below — can exist between the representative plaintiffs and their lawyers, and lead to improved outcomes for group members.
117. Having concluded that it is not an error of principle to have regard to cooperation in resolving multiplicity disputes, it is clear that the judge had regard to the cooperation leading to the consolidation of three of the proceedings in the multiplicity dispute in appropriate ways. The judge recognised that cooperation leading to consolidation tends to drive efficiencies in the form of saving time and money, and that group members are the ultimate beneficiaries of these efficiencies. Further, the past track record of cooperation by those involved in the consolidated proceeding gave confidence that those same parties would continue to resolve issues in a timely and cost-effective manner. Consistent with the comments in [111] and [113] above, this was the appropriate prism through which to analyse cooperation, which was a relevant factor forming part of the multifactorial analysis in this multiplicity dispute.
118. Besides challenging the general relevance of cooperation to the resolution of multiplicity disputes, Kajula made specific arguments about the way the judge evaluated such cooperation. We reject those arguments principally on the basis that they could not establish a House error. Even if they could, we would reject them for the following reasons.
119. First, it is not correct that the judge elevated cooperation above all other factors and thereby failed to determine what was in the best interests of group members. As the Reasons demonstrate,^[101] the judge had regard to several factors, many of which he considered to be either neutral or to favour the continuation of one proceeding. However, in the particular facts of this case, as the respondents conceded, cooperation was the factor which was ultimately most influential in the judge’s determination to award carriage to the consolidated proceeding.
120. Second and further to [91] above, it follows that we do not accept Kajula’s submission that the Reasons establish a precedent that will encourage rushed consolidations, on the basis that courts will reward those who consolidate and punish those who do not. Rather, the Reasons disclose that regard must be had to all the factors relevant to the particular dispute, including past cooperative behaviour in accordance with group members’ interests and the requirements of the CPA.
121. Relatedly, we do not accept Kajula’s submission that the Reasons disclose a policy of favouring the efficient conduct of the proceedings from the Court’s perspective, rather than group members’ best interests. In making an order under s 33ZF, s 9(1) of the CPA required the judge to further the overarching purpose of facilitating the just, efficient, timely and cost-effective resolution of disputes by having regard to specific objects. These included the ‘efficient conduct of the business of the Court’ and the ‘efficient use of judicial and administrative resources’.^[102] For the reasons set out in [115] above, these considerations were consonant with the interests of justice under s 33ZF of the Act, viewed through the prism of group members’ best interests. Further, the judge’s reference in [82] of the Reasons (set out at [53] above) to the policy implications of treating the involvement of more than one firm following consolidation as a negative, was addressed to a confined matter (being the duplication of costs issue). He was not making a more general statement about a policy of preferring consolidated proceedings when resolving multiplicity disputes.
122. Third, we reject Kajula’s contention that the judge erred by failing to conclude that the cooperation of the consolidating parties was a ‘neutral’ factor in the case.
123. Proposed ground 3(a) asserts that cooperation should have been a neutral factor because the need for future cooperation only arose as a result of the appointment of two law firms in the consolidated proceeding (whereas Kajula’s proposal involved the use of only one law firm). We reject this submission. Plainly, parties to civil litigation must cooperate with the Court and other parties in order to conduct proceedings consistently with their CPA obligations. As explained at [113] above, past cooperative behaviour leading to consolidation can be relevant to the extent that as it indicates cooperation will continue in the proceeding more generally. That was recognised by the judge at [131] of the Reasons, where he said that the past cooperation gave confidence that this conduct would continue ‘in the future conduct of the ... proceeding’.
124. Proposed ground 3(b)(i)^[103] asserts that cooperation should have been a neutral factor because the initial cooperative efforts of the Lidgetts, Jowene and Teoh-Eckardt led to a proposal (ie the original consolidation proposal) that was ‘unworkable’ and was not in the best interests of group members relative to the proposal advanced by Kajula at the time. This submission ignores the fact that the ultimate product of the cooperation was the consolidation. As set out above in [117] above, the consolidation resulted in significant savings of time and costs in determining the multiplicity dispute. The ultimate question for the judge related to the two final proposals put forward by Kajula and the Lidgetts. Kajula emphasised that its ultimate proposal was more aligned with the best interests of group members. That is the substantive issue that the judge addressed; and, for the reasons set out below, there was no error in his conclusion on this issue.
125. Finally, proposed ground 3(b)(ii) seeks to impugn the consolidating parties’ track record of cooperating and resolving differences by pointing to the Lidgetts’ unexplained failure to file a consolidated statement of claim at the time of the hearing of the multiplicity dispute. We regard this as a matter of little moment. In any event, the judge adequately addressed this by ordering the filing of a consolidated claim, which has occurred.

Competition

126. Underlying many of Kajula’s submissions appears to be the contention that cooperation to achieve consolidation undermines the benefits that flow to group members from an otherwise competitive process. As set out above, Kajula submits that by treating cooperation as relevant to the determination of a multiplicity dispute (and placing emphasis upon it), the judge’s decision creates a precedent to encourage rushed consolidations and discourage multiplicity disputes, thus eliminating competition among group proceedings that promotes better results for group members. We have already explained why the Reasons do not create a precedent of the kind asserted. Further, Kajula’s attempt to draw a connection with the situation in the United States is not of assistance.^[104]
127. It is necessary to make some observations about the concept of ‘competition’ in the context of multiplicity disputes.
128. First, the economic logic of a free market for goods or services is not directly relevant to the determination of multiplicity disputes. This is because the court is not predominantly guided by reference to the cost at which legal services are provided: rather, as set out above, the authorities make clear that the best interests of group members are to be determined by reference to a variety of matters, including the just, efficient and timely resolution of the relevant proceedings. Further, as set out above, court resources and judicial time are also relevant factors in determining what order promotes the interests of justice in multiplicity disputes.
129. Second, group members are protected by various legal duties. A lead plaintiff in a group proceeding typically undertakes a fiduciary obligation to group members.^[105] So too, legal representatives for lead plaintiff/s have professional, contractual and fiduciary duties.^[106] These duties serve to protect group members against the kind of anti-competitive conduct Kajula suggested may occur (such as price fixing and market sharing) when legal practitioners negotiate the terms of a consolidation away from the Court. In a different context, Lee J noted that the Court is ‘entitled to expect that the applicant and the lawyers will not act contrary to the interests of group members as a whole’.^[107] That expectation applies with similar force to conduct pursuant to a court-ordered conferral.
130. Third, under the Act, the Supreme Court is actively involved in managing and overseeing the conduct of group proceedings. This includes the power to make conferral orders where there is a multiplicity of group proceedings. As this case demonstrates, in determining multiplicity disputes, the courts may look to recent decisions to determine whether aspects of the ultimate proposal are fair and reasonable. The judge compared the GCO rates offered by Kajula and the Lidgetts against GCO rates that had recently been approved by the Supreme Court in comparable group proceedings.^[108] The Court’s supervisory and protective role provides another significant safeguard against any detriment to group members resulting from lack of competition as asserted by Kajula.
131. Finally, as the majority in Wigmans recognised, multiplicity of proceedings is not to be encouraged and competing group proceedings run by different firms of solicitors, with different funders, may in principle be inimical to the administration of justice.^[109] We respectfully adopt the observations of Nichols J in Fuller, in which her Honour rejected the defendant’s submission that the Court should not order consolidation so that the lead plaintiffs could continue to compete with each other to offer the most competitive GCO proposals:

Any consent application for consolidation with joint representation, or indeed any application for consolidation ‘removes’ whatever competitive tension would have been inherent in a disputed carriage contest on the question of price, whatever the funding models in play. It does not follow, however, that the resolution of a multiplicity problem by allowing consolidation is an exercise in ‘artificially bifurcating consideration of the factors that should inform the interests of justice’, as the defendants put it. Taken to its logical conclusion, on the defendants’ construction, faced with overlapping group proceedings a Court should seek to create price competition by requiring a contested carriage dispute even where the Court is otherwise satisfied that a consolidation of proceedings is appropriate. That approach to multiplicity is inconsistent with the principles that are now well established ... .^[110]

132. As a result of these matters, the process or procedure leading to the different ultimate proposals put before the Court — whether pursuant to conferral orders or otherwise — is far from a truly competitive process. It follows that we agree with the submission of counsel for the respondents that ‘competition’ is not really an apt label for what occurs in this context. Counsel instead suggested that what is occurring is ‘a contest ... determined by a court’ in accordance with the rules and principles developed in the authorities.
133. The competitive influence of one of the parties to that contest on the proposal ultimately advanced by another party to the contest may be relevant to the determination of a multiplicity dispute. However, the Court is not required to scrutinise the minutiae of the competitive behaviour of the parties to determine which position adopted by which party and their legal advisers has led to which particular (if any) benefit for the group members. Rather, depending on the facts of each case, it may be appropriate to consider the way in which a party and their legal advisers have influenced the development of a counter-proposal, and the overall outcome or advantage that has flowed to group members as a result.
134. In oral argument, counsel for Kajula frequently referred to the implications of ‘conferral orders’ on competition. The thrust of this submission appeared to be that conferral orders gave legitimacy and lawfulness to conduct that would otherwise be unlawful. In circumstances where no challenge was made to the 7 June conferral orders, it was not clear what general conclusions this Court was being asked to draw about conferral orders.
135. Further, the 7 June conferral orders were made pursuant to the Protocol.^[111] Consistent with the CPA and its equivalents, the overarching objective of the Protocol is to ensure access to justice and to facilitate the ‘efficiency and effectiveness’ of class action proceedings. In applying the Protocol, the Courts are to promote the ‘efficient and timely coordination and administration of competing class action proceedings’ and to encourage the parties to facilitate such objectives. As set out above, those objectives are consistent with the objects that the CPA requires the Court to have regard to when making orders that determine multiplicity disputes.
136. As a result, we reject the submission that the 7 June conferral orders gave legitimacy or lawfulness to conduct that would otherwise be unlawful.
137. Turning to the facts of this case, we are satisfied that the judge had regard to Kajula’s competitive influence on the proposal that was ultimately advanced by the Lidgetts. Most relevantly, the judge had regard to the fact that Kajula was a driving force in respect of some aspects of the proposal ultimately submitted by the Lidgetts and accepted by the Court.
138. Before the judge, counsel for Kajula submitted that Kajula ‘led the way in terms of the structures and the proposals that have been put forward’ and referred to the fact that Kajula was the first to propose the 21 per cent GCO rate, to include the costs of settlement distribution within the GCO and to offer $5.5 million in security for Downer’s costs. Kajula submitted that Maurice Blackburn (on behalf of the Lidgetts) merely matched Kajula’s proposal in each instance.
139. At [33] of the Reasons, in the context of deciding whether to make a GCO order, the judge considered that the GCO rate ultimately sought was ‘the product of essentially a tender process between competing law firms’. By this observation, we understand the judge to have been referring to the competitive behaviour of the representative plaintiffs and to have been acknowledging the elements of the GCO proposal ultimately accepted by the Court that were driven by Kajula.
140. Further, when deciding the multiplicity dispute, the judge considered Kajula’s competitive influence at [139] of the Reasons in the context of the order of filing: the judge found that although Kajula filed its statement of claim last, that fact was effectively balanced out by the fact that it had led the way on each of the three matters described above.^[112] It is clear that the judge considered these positive steps taken by Kajula to be of some relevance to the multiplicity dispute. In our view, [139] of the Reasons demonstrates that the judge did weigh this factor — being past conduct that manifested as competitive behaviour in the best interests of group members. Nevertheless, it is also clear that the judge concluded that this was not an influential factor in reaching his ultimate conclusion.
141. As a result, there is no House error in the judge’s analysis in the proposed grounds relating to Kajula’s competitive influence on the ultimate proposal of the consolidating parties.

Cooperation and competition issue: outcome

142. In light of the above reasons, Kajula has no real prospect of success on the suite of proposed grounds identified at [94] and [95] above:

(a) because there was no House error in the reasoning of the judge that is challenged by proposed ground 2 (relating to consolidation), 3(a), 3(b), 5(c), 5(d) (relating to cooperation) or 3(d), 5(a) and 5(b) (relating to competition); and

(b) because proposed ground 3(e) (relating to competition) did not identify a House error.

Duplication of costs issue, reasonableness of costs issue, suitability of lead plaintiff issue and readiness to proceed issue

Proposed grounds

143. We will now address the duplication of costs, reasonableness of costs, suitability of lead plaintiff and readiness to proceed issues.
144. As to the duplication of costs issue, the relevant proposed ground is 3(c) which provides:
     3. In carrying out the evaluative exercise required of the Court, his Honour erred:

...

(c) in failing to have regard, or give sufficient weight, to the fact that the Second and Third Respondents would incur multiple tranches of legal costs by their choice of being represented by two law firms when they had not demonstrated the need for two firms to represent them, and in finding that the use by the Second and Third Respondents of two law firms rather than one was a neutral factor (Reasons at [82]), whereas it should have weighed against the award of carriage;

145. As to the reasonableness of costs issue, the relevant proposed ground is 3(i) which provides:
     3. In carrying out the evaluative exercise required of the Court, his Honour erred:

...

(i) in failing to have regard to the effect of the Second and Third Respondent’s consolidation proposal which was that the more expensive law firm (Maurice Blackburn) was allocated 70% of the work, which may operate to the ultimate detriment of group members at the conclusion of the proceeding as part of the Court’s assessment of reasonableness of costs incurred under the GCO.

146. As to the suitability of lead plaintiff issue, the relevant proposed ground is 3(f) which provides:
     3. In carrying out the evaluative exercise required of the Court, his Honour erred:

...

(f) in failing to give sufficient weight to the suitability of the Applicant as lead plaintiff, given that its share purchases span a large part of the claim period, and those of the proposed lead plaintiff in the consolidated proceedings do not (Reasons at [112]);

147. As to the readiness to proceed issue, the relevant proposed grounds are 3(g) and 3(h) which provide:
     3. In carrying out the evaluative exercise required of the Court, his Honour erred:

...

(g) in failing to give sufficient weight to the respective readiness of the competing proceedings and to the fact that the Applicant’s statement of claim required no amendment compared with the Second and Third Respondents’ proposed harmonised consolidated statement of claim which was yet to be drafted and where the Second and Third Respondents had offered no explanation for their failure to prepare their proposed consolidated pleading prior to the multiplicity hearing;

(h) in failing to have regard to the time savings and efficiencies which arise from the readiness of the Applicant’s proceeding to proceed in circumstances where there was no need for group members to suffer the delays or costs which arise from the need for the Second and Third Respondents to draft and harmonise their disparate pleadings;

Contentions

148. By these proposed grounds, Kajula contends that the judge erred by failing to have regard to, or by giving insufficient weight to various matters. Like the cooperation and competition issue, in oral argument, Kajula did not focus on the proposed grounds in turn but instead made submissions on these issues in a more general way, asserting, in substance, that these issues should have resulted in the judge awarding carriage of this group proceeding to Kajula. As a result, we will address each issue in turn.
149. As to the duplication of costs issue, Kajula contends that the judge erred by finding the involvement of two law firms to be a neutral factor in circumstances where the risk of duplicated costs only arose and therefore only needed to be managed in the consolidated proceeding. The relevant findings of the judge are set out at [49]–[53] above, with the judge ultimately concluding that the involvement of two firms rather than one was a neutral factor in light of the costs monitor orders, which meant that any duplicated costs resulting from the involvement of two firms would not be recoverable from group members or Downer. Counsel for Kajula submitted that, although the costs monitor was there to protect both Downer and group members from exposure to duplicated costs, the risk of duplicated costs was still relevant to how a funder will determine whether to settle a dispute. This was because when costs are higher, and the funders pay more towards legal fees, ‘that must have a bearing upon what the funder is prepared to accept by way of a settlement’.
150. As to the reasonableness of costs issue, Kajula contends that the judge erred in failing to have regard to the significance of Maurice Blackburn being allocated 70 per cent of the work in the consolidated proceeding, in circumstances where its services are more expensive than William Roberts. Kajula said it was ‘counterintuitive’ that the more expensive law firm would be given the greater share of the work.
151. As to the suitability of lead plaintiff issue, Kajula contends the judge erred by finding that the period of time in which it owned shares in Downer (Kajula owned shares from August 2019; the Lidgetts owned shares from early December 2022) favoured the Kajula proceeding^[113] but nevertheless awarding carriage to the consolidated proceeding. This was because sample group members may need to be appointed in the consolidated proceeding, who would not give instructions to lawyers. No such complications would arise in the Kajula proceeding. The relevant findings of the judge are set out in [54]–[57] above. The judge concluded that while both the simplicity of one lead plaintiff and the certainty regarding the determination of issues in the Kajula proceeding weighed in favour of this proceeding going forward, this was not a material factor when weighing the competing proposals.
152. As to the readiness to proceed issue, Kajula contends the judge erred by not having regard to the fact that time savings and efficiencies would result from selecting the Kajula proceeding given that its statement of claim was ready to proceed or, alternatively, that the judge did not give sufficient weight to Kajula’s readiness to proceed. As set out in [59]–[60] above, the judge found that the fact that no statement of claim had been prepared in the consolidated proceeding was a ‘neutral’ factor, given that it would be filed in four weeks. At the hearing of the application, counsel for Kajula further submitted that the fact that there was no consolidated statement of claim meant that there was no opportunity for the judge to assess the quality of the pleading (referring to Wiley[114]k Pty Ltd v AMP Ltd).¹¹⁴
153. Further, Kajula contends that there is overlap between the readiness to proceed issue and the suitability of lead plaintiff issue, namely, without the consolidated statement of claim, the judge was not in a position to assess the level of risk that sample group members may need to be appointed in the consolidated proceeding.
154. Finally, Kajula submits that having regard to the finely balanced contest between the Kajula proceeding and the consolidated proceeding, each of these issues were of significance and the judge should have concluded that carriage should be awarded to the Kajula proceeding.

Consideration

155. In relation to these issues, Kajula complains the judge failed to have regard to three matters:

(a) the potential duplication of costs arising from the consolidated proceeding, in circumstances where there was no demonstrated need for two law firms to be involved;

(b) the time savings and efficiencies which arose from the Kajula proceeding being ready to proceed; and

(c) the fact that the consolidated proposal meant that the more expensive of the two law firms involved in the consolidated proceeding (Maurice Blackburn) had been allocated 70 per cent of the work.

156. We reject this submission. As to the first matter, the judge expressly considered the risk of duplicated costs and accepted that it was a risk that did not arise in respect of the Kajula proceeding. However, given that risk could be appropriately managed via the costs monitor orders, this became a neutral factor in his determination.
157. As to the second matter, the judge expressly considered the respective readiness of each of the proceedings to proceed, noting that the four weeks that it would take the Lidgetts to file a consolidated statement of claim was a relatively short time. We are not satisfied that the costs and time involved in the creation of such a document were a material consideration in the House sense in a proceeding of this nature.
158. As to the third matter, the judge expressly noted the agreed division of labour between the two firms involved in the consolidated proceeding. We are not satisfied the fact that Maurice Blackburn was more expensive than its agent, William Roberts, was a material consideration in the House sense. In our view, the more relevant comparison was between Maurice Blackburn and Quinn Emanuel.
159. As a result, in so far as the proposed grounds of appeal contend the judge did not take into account a material consideration, ie that the judge did not take them into account at all, there is no House error.
160. Kajula’s alternative position is that the judge failed to give the appropriate weight to certain matters, namely the potential duplication of costs, the suitability of Kajula as lead plaintiff and the respective readiness of the competing proceedings, in circumstances where the consolidating parties provided no explanation for their failure to prepare a proposed consolidated pleading prior to the multiplicity hearing. However, that does not constitute a House error. In effect, much of Kajula’s argument on these points was a re-run of its arguments on the merits as put before the judge.
161. Nevertheless, as it is of some relevance to the cooperation and competition issues and to the ground 4 issue, we will address some of the parties’ specific submissions.
162. In relation to the duplication of costs issue (namely, whether the involvement of two law firms was ‘neutral’ in circumstances where the judge found that the risk of duplicated costs only arose and therefore needed to be managed in the consolidated proceeding), there is no error in the Reasons. In addition to the safeguard provided by the costs monitor orders, the fact that the GCO imposed a cap on the recoverable costs incentivises the two law firms to manage and conduct their work cost-effectively, consonant with the best interests of group members and with their legal professional obligations. As the judge noted, the Court also has the power to alter the GCO and therefore reduce the rate if it is considered necessary or appropriate in the circumstances.^[115]
163. In relation to the readiness to proceed issue (namely the judge erred by not having regard to the benefits of Kajula having a statement of claim that was ready to proceed or, alternatively, that the judge did not give sufficient weight to this readiness) there is no error of the judge. As the judge noted, a consolidated statement of claim could be prepared within the relatively short period of four weeks, rendering this matter immaterial. The failure of the consolidating parties to provide an explanation for not having already prepared such a document by the multiplicity hearing was similarly immaterial to the exercise of the judge’s discretion.
164. Further, as to the submission set out in [153] above (namely that the judge was not in a position to assess the risk that sample group members would need to be appointed without a consolidated statement of claim) the judge had copies of the respective statements of claim in the Jowene, Teoh and Lidgett proceedings, which were to be harmonised into the consolidated statement of claim. In our view, this material provided a sufficient basis for the judge’s assessment of risk.
165. In relation to the suitability of lead plaintiff issue (namely that the judge erred by finding the period of time in which Kajula owned shares in Downer favoured the Kajula proceeding but nevertheless awarding carriage to the consolidated proceeding), there is no error in the judge’s conclusion that this was not a material or influential factor. Appointing sample group members is now a ‘well-established’ procedure to manage a trial of a group proceeding.^[116] Further, we are not satisfied that the problem asserted by Kajula, namely that the sample group members could not give instructions to lawyers, is a material consideration.
166. In these circumstances, proposed grounds 3(c), (f)–(h) and (i) have no real prospect of success.
167. Finally in this context, we wish to address the submission of Kajula to the effect that the judge needed to consider whether — and explain why — the consolidated proceeding’s proposal was more advantageous than the proposal involving one firm. In our view, Kajula’s submission is misconceived. The judge did consider the benefits arising from the consolidated proceeding, most relevantly the past cooperative behaviour which he concluded was a relevant factor in the multifactorial analysis.
168. Further, as set out above, the judge considered various other factors relating to the ultimate proposals put forward by the Lidgetts and Kajula. As noted, the judge concluded that the readiness to proceed issue and the duplication of costs issue were neutral, and the suitability of lead plaintiff issue was in Kajula’s favour. Additionally, the fourth factor relied upon by Kajula (ie that Kajula’s proposal only involved one firm and one funder, whereas the consolidated proceeding’s proposal was more complex) related to the duplication of costs issue and was substantially addressed by the hearing, including by the costs monitor orders. As a result, we are not satisfied that this fourth factor was a material consideration in the House sense.

The ground 4 issue

169. In essence, by proposed ground 4, Kajula asserts that the judge should have concluded that the best interests of group members were served by Kajula’s proposal in light of the evidence and findings made by him in relation to the duplication of costs issue, the suitability of lead plaintiff issue, and the readiness to proceed issue. In view of the House principles, Kajula’s argument must be that, in the proper exercise of the discretion, the only just or reasonable outcome available to the judge was to adopt Kajula’s proposal. Put differently, Kajula’s argument must be that it was plainly unjust, or not reasonably open to the judge, to make the decision he made.
170. For completeness, this proposed ground is set out in full below:
     4. The primary judge should have concluded that the best interests of group members were served by the Applicant’s proposal, in light of his Honour’s findings that:

     (a) the risk of duplicated costs arises where there are two law practices acting and the same risk does not arise when there is only one law firm acting and that this complexity would affect the conduct of the Second and Third Respondents’ consolidated proceeding and require the management of the Court to address (Reasons at [73], [79] and [141]);

     (b) there is a risk that the primary judge may require the appointment of sample group members in the consolidated proceeding, given that the Second and Third Respondent’s purchases do not span the entire claim period (unlike the Applicant’s purchases) (Reasons at [117]);

     (c) ‘the simplicity and certainty regarding the determination of issues of [the Applicant] whose own case covers the entire period is a factor that weighs in favour [of awarding carriage to the Applicant]’ (Reasons at [118] and [142]);

     (d) the Applicant’s statement of claim required no amendment (Reasons at [137]); and

     (e) a risk of duplicated costs arises from the Second and Third Respondents’ choice of being represented by two law firms (Reasons at [79], [80(a)] and [141]).

171. There is no need to set out Kajula’s contentions, as they have already been substantively canvassed above in relation to the consideration of the other proposed grounds, particularly in relation to the duplication of costs issue, the suitability of lead plaintiff issue and the readiness to proceed issue. We refer to [148]–[154] above.
172. For the reasons set out above, in particular in relation to the duplication of costs issue, the suitability of lead plaintiff issue and the readiness to proceed issue, we reject Kajula’s contention that, by reason of the findings referred to in proposed ground 4, the judge, acting reasonably, could only have concluded that the best interests of group members would be served by the Kajula proceeding going forward to trial. That is to say, the decision to stay the Kajula proceeding, was not, in light of the judge’s factual findings, unreasonable or plainly unjust, with the result that we are not satisfied that this kind of House error has been made out.
173. As a result, proposed ground 4 has no real prospect of success.

Conclusion

174. It follows from our conclusions in relation to proposed grounds 2 to 5 (which are in substance particulars of proposed ground 1) that proposed ground 1 has no real prospects of success.
175. In these circumstances, we would refuse leave to appeal in relation all of the proposed grounds of appeal. As a result, it is unnecessary to consider the notice of contention.
176. We wish to make some final observations.
177. The judge dealt with this matter admirably and in a thorough fashion. His decision involved weighing relevant considerations in the exercise of a discretion on a matter of practice and procedure, and case management. This application has not revealed any error of principle. Kajula’s attempt to promote competition as a point of principle to bring itself within House principles has failed.
178. In our view, it is important that trial judges make commonsense and expeditious decisions on matters of practice and procedure and case management in group proceedings. This will enable such proceedings to move forward in as timely, efficient and cost-effective manner as possible. Expensive and distracting satellite applications for leave to appeal decisions on matters of practice and procedure and case management in such proceedings should be discouraged.

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^[1] Lidgett v Downer EDI Ltd; Kajula Pty Ltd v Downer EDI Ltd; Jowene Pty Ltd v Downer EDI Ltd; Teoh v Downer EDI Ltd [2023] VSC 574, [148] (Delany J) (‘Reasons’).

^[2] Proposed grounds 2, 3(a), 3(b), 5(c) and 5(d).

^[3] Proposed grounds 3(d), 3(e), 5(a) and 5(b).

^[4] Proposed ground 3(c).

^[5] Proposed ground 3(i).

^[6] Proposed ground 3(f).

^[7] Proposed grounds 3(g) and 3(h).

^[8] Proposed ground 4.

^[9] In addition, Kajula’s revised statement indicated its openness to negotiating in order to consolidate one or more of the competing actions if an appropriate protocol was agreed.

^[10] Reasons, [33].

^[11] Additionally, on 31 July 2023, Kajula entered into a Retainer with Quinn Emanuel which provided that ‘On [Kajula’s] instructions ... [Quinn Emanuel] will file an application for a “Group Costs Order”’ at a rate of ‘up to 21% (inclusive of applicable GST)’.

^[12] Teoh-Eckardt adopted the Lidgetts’ submissions.

^[13] Reasons, [2]–[5].

^[14] Ibid [6]–[27].

^[15] See generally, [19]–[34] above.

^[16] CPA s 7(1).

^[17] Reasons, [16]–[18].

^[18] Ibid [13]–[14].

^[19] Ibid [28]–[42].

^[20] Ibid [33].

^[21] Ibid [34].

^[22] Ibid [35]. See also at [27]–[28] above.

^[23] Reasons, [36]–[42].

^[24] The judge was not limited to granting a stay under s 33ZF, given the Court’s inherent power to regulate its own procedures: s 30 of the Act.

^[25] (2012) 265 FLR 247; [2012] VSCA 168 (‘Pathway’).

^[26] Reasons, [44].

^[27] [2012] VSCA 168; (2012) 265 FLR 247, 259 [55]–[56] (Bell AJA, Bongiorno JA agreeing at 249 [1], Harper JA agreeing at 249 [2]); [2012] VSCA 168.

^[28] Reasons, [55]–[56], quoting from the written submissions of both the Lidgetts and Kajula.

^[29] [2021] HCA 7; (2021) 270 CLR 623, 654–5 [74] (Gageler, Gordon and Edelman JJ); [2021] HCA 7 (‘Wigmans’).

^[30] Reasons, [118].

^[31] Ibid [46]–[53].

^[32] Ibid [57].

^[33] Ibid [54].

^[34] Ibid [68]–[82]. This issue appears to have originally incorporated arguments about ‘avoidable complexity’ in the consolidated proceeding arising from the involvement of two law firms and the need for dispute resolution. However, by the hearing, these complexities had largely fallen away and the remaining issue was potential duplication of costs.

^[35] Ibid [82].

^[36] Ibid [79].

^[37] Ibid [73].

^[38] Ibid [74].

^[39] Ibid [80]–[81].

^[40] Ibid [112]–[118].

^[41] Ibid [118].

^[42] Ibid [112].

^[43] Ibid [129]–[133].

^[44] Ibid [130]–[131], [133].

^[45] Ibid [130]–[131].

^[46] Ibid [132]–[133].

^[47] Ibid [137].

^[48] Ibid [138].

^[49] See, eg, Wigmans [2021] HCA 7; (2021) 270 CLR 623, 667 [107] (Gageler, Gordon and Edelman JJ); [2021] HCA 7.

^[50] Reasons, [140]–[148].

^[51] Ibid [140]–[143].

^[52] The facilitation of the just, efficient, timely and cost-effective resolution of the real issues in dispute: CPA s 7.

^[53] [2024] HCA 30 (‘Moore’).

^[54] Ibid [14]–[15] (Gageler CJ, Edelman, Steward, Gleeson and Beech-Jones JJ) (citations omitted).

^[55] (1936) 55 CLR 499, 504–5 (Dixon, Evatt and McTiernan JJ); [1936] HCA 40 (‘House’).

^[56] [1979] HCA 9; (1979) 142 CLR 531, 552 (Gibbs ACJ, Jacobs and Murphy JJ); [1979] HCA 9.

^[57] (2003) 214 CLR 118, 126–9 [25]–[31] (Gleeson CJ, Gummow and Kirby JJ); [2003] HCA 22.

^[58] (2023) 414 ALR 635; [2023] HCA 32.

^[59] Ibid 642–3 [17] (Kiefel CJ, Gageler and Jagot JJ, Steward J agreeing at 663–4 [95]–[96], Gleeson J agreeing at 678 [161]).

^[60] Ibid 645 [23] (Kiefel CJ, Gageler and Jagot JJ, Gleeson J agreeing at 678 [162]), 663–4 [95] (Steward J).

^[61] Ibid 645 [24] (Kiefel CJ, Gageler and Jagot JJ, Gleeson J agreeing at 678 [161]) (emphasis omitted).

^[62] Ibid.

^[63] Ibid 642 [16], Kiefel CJ, Gageler and Jagot JJ, Gleeson J agreeing at 678 [161]), citing Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17.
^[64] [2022] FCA 1546.

^[65] Ibid [7]–[9].

^[66] Interpretation of Legislation Act 1984 s 45(1).

^[67] See Wigmans [2021] HCA 7; (2021) 270 CLR 623, 649 [52], 667–8 [109], 670 [116]–[117] (Gageler, Gordon and Edelman JJ); [2021] HCA 7.

^[68] (2018) 263 FCR 92; [2018] FCAFC 202 (‘GetSwift’).

^[69] (2019) 369 ALR 583; [2019] FCAFC 107 (‘Klemweb’).

^[70] [2021] HCA 7; (2021) 270 CLR 623, 666 [106] (Gageler, Gordon and Edelman JJ); [2021] HCA 7.

^[71] [2019] FCAFC 107; (2019) 369 ALR 583, 587 [13]; [2019] FCAFC 107.

^[72] Ibid 593–4 [47]–[51].

^[73] GetSwift [2018] FCAFC 202; (2018) 263 FCR 92, 129 [162] (Middleton, Murphy and Beach JJ); [2018] FCAFC 202.

^[74] [2023] HCA 32; (2023) 414 ALR 635, 642 [16] (Kiefel CJ, Gageler and Jagot JJ); [2023] HCA 32.

^[75] [2021] HCA 7; (2021) 270 CLR 623, 662 [94] (Gageler, Gordon and Edelman JJ); [2021] HCA 7.

^[76] [2018] FCAFC 202; (2018) 263 FCR 92, 97 [11], 129–130 [162]–[163] (Middleton, Murphy and Beach JJ); [2018] FCAFC 202.

^[77] [2019] FCAFC 107; (2019) 369 ALR 583, 587 [13]–[14] (Middleton and Beach JJ), 593–594 [47]–[51] (Lee J); [2019] FCAFC 107.

^[78] [2019] FCAFC 147; (2019) 372 ALR 638, 643 [20] (Murphy, Gleeson and Lee JJ); [2019] FCAFC 147.

^[79] See Moore [2024] HCA 30, [14]–[15] (Gageler CJ, Edelman, Steward, Gleeson and Beech-Jones JJ).

^[80] House (1936) 55 CLR 499, 504–5; (Dixon, Evatt and McTiernan JJ); [1936] HCA 40.

^[81] Kennedy v Shire of Campaspe [2015] VSCA 47, [13] (Whelan and Ferguson JJA); Qu v Wilks [2023] VSCA 198, [67] (Beach, Kennedy and Walker JJA).

^[82] Molonglo Group (Australia) Pty Ltd v Cahill [2018] VSCA 147, [96] (Maxwell ACJ, Whelan and Kyrou JJA).

^[83] [2024] VSCA 158.

^[84] Ibid [71] (Kennedy, Macaulay and Lyons JJA).

^[85] Note Printing Australia Ltd v Leckenby [2015] VSCA 105; (2015) 50 VR 44, 72 [82] (Tate JA, Whelan JA agreeing at 73 [87], Ferguson JA agreeing at 73 [88]); [2015] VSCA 105.

^[86] 143 F Supp 2d 304, 309 (Rakoff DCJ) (SDNY, 2001).

^[87] Set out at [53] above.

^[88] Kajula relied upon [20] of the Reasons, set out at [39] above, which related to the consolidation application, not the multiplicity dispute. Kajula also relied upon [133] of the Reasons.

^[89] Stallard v Treasury Wine Estates Ltd [2020] VSC 679, [28] (Nichols J) (‘Stallard’).

^[90] Emphasis added. See also CPA ss 9(2)(a) and (e).

^[91] (2019) 137 ACSR 540; [2019] FCA 1021 (‘Brambles’).

^[92] Ibid 555–6 [62]. See also 555 [61].

^[93] Ibid 543 [10].

^[94] (2021) 65 VR 78; [2021] VSC 581 (‘Fuller’).

^[95] [2020] VSC 679.

^[96] GetSwift [2018] FCAFC 202; (2018) 263 FCR 92, 128–9 [161] (Middleton, Murphy and Beach JJ); [2018] FCAFC 202.

^[97] [2019] FCA 1021; (2019) 137 ACSR 540, 555–6 [62]; [2019] FCA 1021.

^[98] Wigmans [2021] HCA 7; (2021) 270 CLR 623, 667–8 [109] (Gageler, Gordon and Edelman JJ); [2021] HCA 7.

^[99] Emphasis added.

^[100] CJMcG Pty Ltd v Boral Ltd [No 2] [2021] FCA 350; (2021) 389 ALR 699, 703 [9] (Lee J); [2021] FCA 350. See also Brambles (2019) 137 ACSR 540; [2019] FCA 1021, 552 [51] (Murphy J); Stallard [2020] VSC 679, [20]–[21] (Nichols J).

^[101] See above [49]–[63].

^[102] CPA ss 9(1)(c)–(d).

^[103] See also proposed grounds 5(c) and(d).

^[104] See [90] above.

^[105] See Wigmans [2021] HCA 7; (2021) 270 CLR 623, 670 [117] (Gageler, Gordon and Edelman JJ); [2021] HCA 7.

^[106] See Klemweb [2019] FCAFC 107; (2019) 369 ALR 583, 601–2 [85] (Lee J); [2019] FCAFC 107.

^[107] Ibid.

^[108] See [42] above.

^[109] See Wigmans [2021] HCA 7; (2021) 270 CLR 623, 666 [106] (Gageler, Gordon and Edelman JJ); [2021] HCA 7.

^[110] Fuller, [67].

^[111] A comparable protocol also exists between the Supreme Court of New South Wales and the Federal Court.

^[112] Set out at [61] above.

^[113] Reasons, [118]. Set out at [56] above.

^[114] [2018] FCAFC 143; (2018) 265 FCR 1, 8 [17] (Allsop CJ, Middleton J agreeing at 16 [58], Beach J agreeing at 17 [65]); [2018] FCAFC 143.

^[115] The Act s 33ZDA(3).

^[116] Andrianakis v Uber Technologies Inc (Ruling No 3) [2021] VSC 744, [16] (Macaulay J).