Over the years, courts have developed creative and innovative ways of dealing with multiplicity of proceedings born out of competing class actions.
One such method, now endorsed by the High Court of Australia in Wigmans v AMP Limited [2021] HCA 7, involves the Court taking into account various factors and the interests of group members in order to determine the appropriate course to curb multiplicity. In what will no doubt be a polarising opinion throughout the class action legal community, the 3:2 majority judgment re-enforces the views of the Supreme Court of NSW and its Court of Appeal that there can be no ‘one size fits all’ approach to dealing with competing class actions. Further, this judgment confirms that courts have power to grant a stay of one or more competing proceedings, among other mechanisms, to ensure that justice is done in a proceeding.
Key Takeaways
In lieu of legislative intervention, costly and time-consuming beauty parades are here to stay, and winning the ‘race to the bottom’ in terms of overall cost to group members may well prove more decisive than winning the ‘race to the court’;
The provisions of the Civil Procedure Act do not prohibit a discretionary, ‘multi-factorial’ analysis to inform a court’s decision when dealing with competing class actions on a case by case basis;
There is no rule or presumption that an earlier filed proceeding ought to continue over an action filed at a later time. However, the time between the commencement of each proceeding may be a relevant factor in a court’s analysis;
Multiplicity may be dealt with by a variety of means in addition to, or in the alternative to, staying all but one proceeding;
While consideration of litigation funding arrangements is not mandatory, examining the funding arrangements of each proceeding in light of group members’ best interests may be relevant to deciding issues arising out of competing class actions;
The task of deciding appropriate orders dealing with competing class actions is an exercise in ensuring that justice is done in the competing representative proceedings and is not a matter of ‘mere’ case management.
