On 20 November 2018, the Full Court of the Federal Court upheld a decision to permanently stay two out of three open class actions against GetSwift Limited.
With an increased number of competing class actions being commenced, the Full Court took the opportunity to provide general guidance on the range of factors to be considered and the possible options open to a docket judge in dealing with competing open class actions. Some of the key inquiries to be undertaken include:
Three representative proceedings were filed against GetSwift Limited earlier this year following a significant decline in its share price as follows:
The filing of multiple actions meant that the Court was faced with three competing open class actions, represented by three different law firms and financially backed by three different litigation funders.
The primary judge requested the respective parties to come up with a detailed proposal of how to deal with the competing class actions, and if only one proceeding was to go forward, which one and why. The submission of each of the applicants was required to include modelling of the comparative returns to the group members.
The parties all agreed that only one proceeding should go forward. Unsurprisingly each applicant submitted that their proceeding should be preferred.
There were a number of options available to the primary judge as follows:
The primary judge decided that only one proceeding should continue on a long term basis, and that proceeding should be the last past the post, being the Webb Proceeding. At first instance the Perera Proceeding and the McTaggart Proceeding were permanently stayed.
Perera and McTaggart sought leave to appeal the primary judge's decision to stay their respective proceedings to the Full Court of the Federal Court.
Perera and McTaggart were granted leave to appeal. However, the appeal itself was dismissed on the basis that the primary judge's decisions that:
fell within the proper exercise of his discretion.
The Full Court acknowledged that different judges may take a different view on what is the most appropriate course of action and there is no silver bullet for resolving the case management problems that arise from competing class actions.
The Full Court also made the following comments for further consideration:
Whilst the Full Court acknowledged the important role solicitors and litigation funders play in providing access to justice, it was critical of the general failure of solicitors and litigation funders to reach an agreement when it comes to consolidating proceedings. The comments of the Full Court in GetSwift serve as a friendly reminder not to forget that the interests of the parties and the group members should always be paramount.
1. Perera v GetSwift Limited  FCAFC 202.
2. (1999) ATPR 41-679;  FCA 56
3.  FCA 1042.
4.  FCA 947.
5. Perera and McTaggart also appealed other ancillary decisions but those matters are outside the scope of this update.