FEDERAL COURT OF AUSTRALIA

Jennings v Jaguar Land Rover Australia Pty Ltd [2024] FCAFC 62

ORDERS

THE COURT ORDERS THAT:

1.    Leave to appeal be granted and the appeal allowed.

2.    Order 2 made on 12 October 2023 and order 1 made on 15 November 2023 by Lee J in proceeding NSD 1010/2022 (Greentree Proceeding) and proceeding NSD 85/2023 (Jennings Proceeding) be set aside.

3.    By 4pm on 31 May 2024, the applicant and second and third respondents are to:

(a)    provide to the Associate to Murphy J draft orders giving effect to the proposed consolidation of the Greentree Proceeding and Jennings Proceeding and the outcome of the appeal (proposed consolidation orders); and

(b)    serve a copy of the proposed consolidation orders on the first respondent.

4.    If the proposed consolidation orders are provided in accordance with order 3 above:

(a)    by 4pm on 14 June 2024, the first respondent indicates its position in respect of the proposed consolidation orders to the applicant, the second and third respondents and the Associate to Murphy J, including identifying any amendments which it proposes be made to the proposed consolidation orders or any orders which it proposes be made in the alternative to the proposed consolidation orders; and

(b)    this proceeding be listed before Murphy J at a time convenient to the Court and the parties for determination as to whether to permit consolidation of the Greentree Proceeding and Jennings Proceeding on the terms of the proposed consolidation orders.

5.    If the proposed consolidation orders are not provided in accordance with order 3 above, the parties have liberty to apply to relist this proceeding before Murphy J on three days’ notice.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    This is an application for leave to appeal, and if leave is granted an appeal, from the orders of the primary judge on 12 October 2023: Greentree v Jaguar Land Rover Australia Pty Ltd (Carriage Application) [2023] FCA 1209 (hereafter “J”). The orders were made in respect of a multiplicity dispute between two competing, duplicative, “open” class actions brought against the respondent, Jaguar Land Rover Australia Pty Ltd (Jaguar). Both class actions bring claims under the Australian Consumer Law in Sch 2 of the Competition and Consumer Law Act 2010 (Cth) (ACL) in respect to allegedly defective diesel particulate filter (DPF) systems in motor vehicles sold to Australian consumers under the “Jaguar” or “Land Rover” brands. The relevant proceedings are:

(1)    Leah Maree Greentree v Jaguar Land Rover Australia Pty Ltd (NSD 1010 of 2022) (Greentree proceeding), in which Gilbert + Tobin are the solicitors for the applicants, and Balance Legal Capital II UK Ltd, being a fund managed by Balance Legal Capital LLP (collectively, Balance) is the litigation funder; and

(2)    Michelle Jennings v Jaguar Land Rover Australia Pty Ltd (NSD 85 of 2023) (Jennings proceeding) in which Maurice Blackburn Lawyers are the solicitors for the applicant, and which is “co-funded” by Maurice Blackburn acting on a No Win-No Fee basis and a litigation funder CF FLA Australia Investments 3 Pty Ltd, which is an entity within the Vannin Capital group (Vannin).

2    Before the primary judge the applicants in each proceeding sought orders that the other proceeding be stayed. The stay applications were heard together on 28 February 2023.

3    The application for leave to appeal concerns a matter of practice and procedure in a class proceeding. It is in the interests of the parties, the class members and the administration of justice more generally that it be addressed expeditiously. The draft notice of appeal raises various grounds, but in the hearing the Court asked for submissions, first, in respect of only the procedural fairness ground. Upon hearing the parties in relation to that ground the Court concluded that leave to appeal should be granted and the appeal allowed. It was therefore unnecessary to hear submissions on the other grounds. Then, rather than hearing submissions on the re-exercise of the discretion to decide which of the Greentree proceeding or the Jennings proceeding should go forward, the Court adjourned for a short period to provide the Greentree and Jennings applicants an opportunity to consider whether they wished to apply to consolidate the proceedings.

4    Following the adjournment, senior counsel for the Jennings applicant informed the Court that the Greentree and Jennings applicants had reached an in-principle agreement to consolidate the proceedings, subject to documentation and agreement on the finer details. The hearing was then adjourned on the basis that, within approximately two weeks, the Greentree and/or Jennings applicants would file and serve an application to consolidate the two proceedings, and then Jaguar would be given the opportunity to make submissions in opposition to the consolidation application if it wished to do so. The consolidation application would then be listed for hearing before Justice Murphy. In the event the consolidation agreement is not made, or if consolidation is refused, this Court will then resume to re-exercise the discretion in relation to carriage. The Court has made orders accordingly.

RELEVANT PRINCIPLES

5    There was no dispute of substance as to the relevant principles. The Court’s power to resolve multiplicity of representative proceedings arises in the exercise of its inherent power, or its express and implied powers to manage the cases before it in the interests of justice and the parties and consonant with the requirement under s 37M of the Federal Court of Australia Act 1976 (Cth), or in its equitable jurisdiction: Perera v Getswift Ltd [2018] FCAFC 202; 263 FCR 92 at [121] (Middleton, Murphy and Beach JJ). The Court’s function in resolving multiplicity issues is akin to the Court’s position “when considering the position of trustees, liquidators, attorneys or persons under disability”, emphasising “considerations such as prospects of success and cost of the proceedings”: Wigmans v AMP Ltd [2021] HCA 7; 270 CLR 623 at [123] (Gageler J (as his Honour then was), Gordon and Edelman JJ). It involves a multifactorial approach; there can be no “one size fits all” answer; and the factors that might be relevant cannot be exhaustively listed and will vary from case to case: Wigmans at [52]. The decision whether and how to exercise those powers is discretionary: Wigmans at [94].

6    An applicant for leave to appeal must usually show that in all the circumstances the decision proposed to be appealed is attended with sufficient doubt to warrant its reconsideration on appeal; and, supposing the decision to be wrong, substantial injustice to a party would result if leave were refused: Décor Corp v Dart Industries Inc (1991) 33 FCR 397, 398-399. The sufficiency of the doubt in respect of the decision to be appealed and the question of substantial injustice to a party bear upon each other so that the degree of doubt which is sufficient in one case may be different from that required in another. The considerations are cumulative such that leave ought not to be granted unless each limb is made out: Rawson Finances Pty Ltd v Deputy Commissioner of Taxation [2010] FCAFC 139, [5].

7    In respect of discretionary decisions, an applicant for leave to appeal will generally need to demonstrate that the doubts as to the correctness of the decision involve errors or matters of principle of the kind described in House v The King (1936) 55 CLR 499, 504-505. It will not be sufficient to merely demonstrate that the discretion could or even should have been exercised differently: Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission [2016] FCAFC 97; 242 FCR 153 at [16]-[17] (Dowsett, Tracey and Bromberg JJ). Even if the decision below is not discretionary in the House v The King sense, but instead evaluative, it will still be necessary to show that sufficient doubt is shown to warrant intervention: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 at [25] (Allsop J (as his Honour then was), with whom Drummond and Mansfield JJ agreed); Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; 261 FCR 301 (Allsop CJ at [4] to [10], Perram J at [45] to [54]).

8    A party who seeks leave to appeal in relation to an exercise of discretion on a matter of practice and procedure faces a “formidable task” and has a “heavy burden”: Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd [2017] FCAFC 98; 252 FCR 1 at [42] (Jagot, Yates and Murphy JJ). That is particularly so where the application seeks to challenge a decision to resolve the case management problems created by competing class actions. Such decisions are a matter of case management involving the exercise of a discretionary judgment and they commonly involve weighing up incommensurable and conflicting considerations. Different judges may weigh the relevant considerations differently, and there may be a range of potential solutions with no one right answer. Undoubtedly, reasonable minds might differ, and it is not enough that the appellate court may have a preference for a different resolution to that adopted at first instance: Klemweb Nominees Pty Ltd (as trustee for the Klemweb Superannuation Fund) v BHP Group Limited [2019] FCAFC 107; 369 ALR 583 at [13] (Middleton and Beach JJ).

THE HEARINGS AND JUDGMENT BELOW

9    The relevant facts were canvassed in the primary judge’s reasons, particularly at [12]-[25], [31]-[53], [56]. It is unnecessary to repeat them.

10    It is also unnecessary to summarise all aspects of the judgment below when we only heard submissions on the procedural fairness ground, and we have granted leave and allowed the appeal only on that ground.

11    In relation to the procedural fairness ground, the primary judge found that all but two of the considerations relevant to deciding the carriage dispute were either neutral or not of significance. His Honour found that the two “most important but conflicting considerations in assessing this multiplicity dispute” (J [101]) were that:

(1)    Gilbert + Tobin has greater relevant experience than Maurice Blackburn arising from its successful conduct of what the primary judge characterised as “almost identical claims” under the ACL in a class action against Toyota Motor Corporation Australia Ltd concerning allegedly defective DPF systems in motor vehicles sold to Australian consumers under the “Toyota” brand (Toyota class action), in which his Honour was the trial judge: J [13], [95]; and

(2)    the Jennings funding arrangements offers superior returns to group members in all realistic scenarios: J [65]; see also: [32]-[34], [39], [55], [60], [64], [92].

12    In relation to the first matter, the primary judge said that there was “a remarkable similarity” between the claims advanced in the Greentree proceeding and those advanced in the Toyota class action. His Honour held that the Toyota class action was conducted in “a highly efficient and professional manner due to the way in which the factual, legal and evidentiary issues were distilled and presented to the Court” by, relevantly, Gilbert + Tobin. His Honour concluded that the accumulated experience of Gilbert + Tobin would enable the claims of the group members in this proceeding to be advanced efficiently and effectively and consistently with the overarching purpose: J [95]. His Honour considered it “inevitable” that the same legal, factual and evidentiary issues that arose in the Toyota class action will arise in the competing class actions: J [69]. In his Honour’s view, having regard to the “highly technical” nature of the alleged defect in the DPF systems, the relative experience of Gilbert + Tobin in advancing ACL claims in respect of those systems in the Toyota class action will allow the Greentree proceeding to be conducted with comparative efficiency and work to offset any advantage that Jaguar would otherwise enjoy by dint of its subject-matter experience: J [70]. His Honour concluded that, notwithstanding the high reputation and experience of Maurice Blackburn, the relative experience of Gilbert + Tobin in conducting near identical claims in the Toyota class action was not a neutral factor, and the firm’s relative experience offered real benefits for group members: J [72].

13    In relation to the second matter, the primary judge found that the funding arrangements provided in the Jennings proceeding, which capped legal and funding costs at 25% of any aggregate settlement or judgment, were superior to the funding arrangements provided in the Greentree proceeding. His Honour held that the funding arrangements in the Jennings proceeding offered greater net returns to group members than the Greentree proceeding in all realistic scenarios: J [60], [65].

14    To state the obvious, those considerations were “conflicting” because the first consideration indicated that the carriage dispute should be decided in favour of the Greentree applicants, and the second consideration pointed in favour of granting carriage to the Jennings applicant.

15    Neither party proposed consolidation of the two proceedings but, no doubt in an effort to resolve the dispute in the interests of group members, in the course of the hearing his Honour raised the idea of consolidating the two proceedings but with the Jennings’ funding arrangements. In the hearing of the carriage dispute on 28 February 2023 his Honour had the following exchange with Mr Darke SC, senior counsel for Jaguar and then Mr Free SC, senior counsel for the Greentree applicants (T54.36 ff):

His Honour:    …but what would be wrong with me - if I reach this view, and I must say, I think this is an unusually difficult multiplicity argument… But what if I the view at the end of the day is, well, look, I don’t want to lose the - I don’t think it’s in the interests of group members to lose all the work that has been done and the experience obtained by Gilbert + Tobin, and that really comes to nought, and all those sunk costs go away, but I see the force in the benefit for group members in the proposal put by Maurice Blackburn. Now, what would be contrary to principle for me making an order that I want the parties - that I will order a consolidation with the litigation committee on the basis of the Maurice Blackburn funding proposal, provided both parties agree within 14 days?

Mr Darke:    Well, the difficulty is that no - that Greentree hasn’t come along and said that it is prepared to accept or sign up to a funding proposal of that kind.

His Honour:    And if it doesn’t agree with it in 14 days, then I have to make a - I have to go with one or the other. But if it does agree within 14 days, that I proceed along that basis.

Mr Darke:    Well, there would still then need to be a consideration of the other terms of consolidation, the cooperation protocol and the like. I don’t know what the parties might come up with in that respect, and I would wish to be heard about it.

His Honour:    Well, can I say this. I want to provide you procedural fairness. I also want to conclude before the luncheon adjournment. I will give - if the parties want to respond - the best thing going for Mr Moore [senior counsel for the Jennings applicant] is the funding arrangements. The best thing going for Mr Free is the matter that he has had particular focus on concerning the work that has been done in relation to this matter. If I form the view that I thought [it] was best for group members to get the - what might be the best of both worlds, that is the funding arrangements that have been proposed, but there be a consolidation of the teams, even though they haven’t been able to agree. If I were to say that and say, well, they can come back within 14 days with a cooperation agreement on that basis. If they don’t - and I would be prepared to hear the parties. If they’re not prepared to do that within 14 days, then I will deliver a subsequent judgment awarding carriage to one or other of them. Then if any party wishes to be heard concerning that, then I will [have] them put in. I’m not suggesting I’m going to do that. All I’m saying is that I want to give everyone procedural fairness about that and, if you want to put in a note at the same time, you put the other note in, then I’m happy for that to occur.

Mr Darke:    I think the answer to that course really is this, your Honour, that if Gilbert + Tobin are prepared to accept the Maurice Blackburn funding terms, then there’s no - again, no need for consolidation because your Honour can give them carriage on those term[s] and preserve the experience and the head start that they bring to the proceeding.

His Honour:    Okay. Well ---

Mr Darke:    So again, that’s not a reason for consolidation.

His Honour:     Okay. Thank you, Mr Darke. I understand.

Mr Darke:    And then the only other factor that arises is the broader classes proposed by Maurice Blackburn. Now, if your Honour consolidates the proceedings, the consolidated case won’t include that broader class definition unless Gilbert + Tobin agrees and, if Gilbert + Tobin does agree, then of course, it can plead that broader class definition without consolidation. So again, that’s no reason to consolidate.

His Honour:    Yes.

Mr Darke:    So this really is a case where, I think, although perhaps it’s not easy and there are factors going the other way, your Honour has to choose between the two applicants.

His Honour:    Okay. Thank you.

Mr Darke:    If your Honour pleases.

His Honour:    Now, Mr Free. You don’t hold instructions, I take it, to put forward a funding proposal on the lines that has been proposed by Maurice Blackburn.

Mr Free:    No, your Honour.

His Honour:    And that just is not going to work for you.

Mr Free:    I just don’t have those instructions…

16    Having declined the opportunity to revise the funding arrangements in the Greentree proceeding so as to meet the Jennings’ funding arrangements, Mr Free then went on to submit that the advantages his Honour saw in the Jennings’ funding arrangements were not pronounced and involved guesswork.

17    From that point until 12 October 2023, when the primary judge delivered reasons for judgment and made orders the subject of the appeal, the primary judge did not invite the parties to amend or revise their funding proposals and no party sought to do so.

18    In his reasons for judgment, the primary judge held that it was appropriate to provide a period of 28 days for the Greentree applicants, Gilbert + Tobin and Balance to decide whether they were prepared to continue to conduct the Greentree proceeding on a different commercial basis, being the Jennings’ funding arrangements. If they were prepared to undertake to do so the Greentree proceeding would go forward and the Jennings proceeding would be stayed. If they were not prepared to provide an undertaking the Jennings proceeding would go forward and the Greentree proceeding would be stayed: J [103].

19    His Honour then said (at J [104]):

It may be that an undertaking will not be provided or be provided in a form which is said to contain deficiencies. Accordingly, I will require the proposed undertaking to be provided to the Court and served on the solicitors for the Jennings proceeding, and I will give leave to any party to relist the matter for the purposes of further argument and, if there is no further argument, for receipt of the undertaking in open Court. If a proposed undertaking is not provided or the form is unacceptable, I do not consider it is consistent with my protective and supervisory role in relation to group members to allow the Greentree proceeding to be the vehicle in which the group members’ claims are determined.

20    Orders 2 and 4 are the critical orders made on 12 October 2023. The orders relevantly provided:

2.    In the event the applicants in the Greentree proceeding (Greentree applicants), Gilbert + Tobin and Balance Legal Capital II UK Ltd (Balance) provide to the Associate to Justice Lee an undertaking to the Court within 28 days of these Orders that the Greentree applicants, Gilbert + Tobin and Balance will not seek to recover a total amount upon any settlement or judgment representing all legal costs, and other fees and expenses of more than 25 per cent (proposed undertaking) then, upon the receipt and acceptance by the Court of the proposed undertaking as an undertaking to the Court, the Jennings proceeding be permanently stayed.

3.    A copy of the proposed undertaking is to be served on the applicants in the Jennings proceeding immediately upon its delivery to the Associate to Justice Lee.

4.    In the event the proposed undertaking is not provided in accordance with Order 2 above or is thereafter not accepted by the Court, the Greentree proceeding be declassed pursuant to s 33N of the Federal Court of Australia Act 1976 (Cth) and then be temporally stayed pending mediation of the Jennings proceeding and the Greentree proceeding (with the intention that if the mediation does not result in a s 33V application in the Jennings proceeding, the Greentree proceeding then be the subject of a further stay until the initial trial and determination of common questions in the Jennings proceeding).

5.    Liberty to any party in the Greentree proceeding or Jennings proceeding to relist the proceeding immediately upon delivery of any proposed undertaking to the Associate to Justice Lee.

21    On 8 November 2023 the Greentree applicants, Gilbert + Tobin and Balance provided a written undertaking pursuant to Order 2 of the 12 October 2023 orders. At a case management hearing on 15 November 2023 the primary judge accepted that undertaking and varied Order 2 to the effect that the Jennings proceeding be declassed pursuant to s 33N of the Act and temporarily stayed and the Greentree applicants were successful in the carriage motion.

ANALYSIS

22    The draft notice of appeal raised four proposed grounds of appeal, but having regard to our view that the Jennings applicant established the allegation of procedural unfairness, it is unnecessary to deal with them. At the heart of that allegation is the contention that the primary judge denied the Jennings applicant procedural fairness in relation to the two critical considerations on which the carriage decision turned.

23    First, that the effect of Order 2, which disposed of the carriage application, was to give the Greentree applicants an opportunity, which may be described as an option, to meet the funding arrangements offered in the Jennings proceeding. The order did so in circumstances where:

(a)    the Greentree applicants had declined an express opportunity to meet the Jennings’ funding arrangements during the hearing;

(b)    the opportunity was given on the basis that if it was taken up, the Greentree applicants would win the carriage application;

(c)    the opportunity was only provided to the Greentree applicants, and no corresponding opportunity to offer improved funding arrangements was given to the Jennings applicant;

(d)    no opportunity was given to the Jennings applicant even to make submissions as to what was occurring, ie whether such an option should or could be given; and

(e)    the Jennings applicant could not reasonably have foreseen from anything said during the hearing that the primary judge would make such an order.

24    Secondly, that in concluding that Gilbert + Tobin were likely to conduct the present proceedings more efficiently than Maurice Blackburn because Gilbert + Tobin had successfully conducted the Toyota class action, the primary judge acted on a subjective assessment of Gilbert + Tobin’s conduct of those proceedings formed on the basis of facts which were not and could not have been known to the Jennings applicant. It was said that the primary judge erred by becoming a witness in the case.

25    A tight rein must be kept on applications for leave to appeal against discretionary judgments in multiplicity disputes. There is no one right approach to resolving the case management difficulties presented by competing class actions, and different judges may weigh the relevant considerations differently. Even so, having given careful consideration to the evidence, and having regard to the parties’ submissions, we are satisfied that the Jennings applicant was not accorded procedural fairness, and the first of the two alleged errors is sufficient to justify appellate interference.

26    It was procedurally unfair for the primary judge to grant carriage to the Greentree applicants, and to stay the Jennings proceeding, by permitting the Greentree applicants to make a revised funding offer after the hearing, and without notice to the Jennings applicant such that the Jennings applicant had no opportunity to make submissions in relation to that, and no corresponding opportunity to revise their funding offer. The unfairness is clear given that the primary judge considered that the fact that the Jennings proceeding offered superior returns for group members was determinative. His Honour said that unless the Greentree applicants also capped their fees and funding costs at 25% of any aggregate settlement or judgment the Greentree proceeding would be stayed and the Jennings proceeding would go forward.

27    In written submissions the Greentree applicants contended as follows:

During the course of oral argument (which focused on two factors - funding models and comparative subject-matter experience), [the primary judge] informed the parties, in the context of a discussion initially directed to consolidation, that he wished to procure a solution whereby group members obtained “the best of both worlds”: T 54.40-55.6; T 55.19-30. In this context, his Honour expressly contemplated and raised with the parties the possibility of the Greentree applicants altering their funding model after the hearing of the applications; indeed, his Honour specifically invited submissions as to whether that would be against principle for him to proceed in that way.

(Emphasis added.)

28    If that had been true, it may have been a real answer to the Jennings applicant’s complaint as to an absence of procedural fairness. However, having regard to the transcript, that assertion of fact is unfounded.

29    The transcript of the hearing below shows that the Greentree applicants informed the primary judge that neither of the applicants advocated for consolidation as their primary position: T53.34. The primary judge then floated the idea of an order to consolidate the two proceedings on the basis of the Jennings funding arrangements: T54.40-47. Senior counsel for Jaguar then reminded the primary judge that the difficulty with that proposal was that Greentree had not said it was prepared to do so. His Honour then asked whether there was anything wrong in principle with orders which would give group members “the best of both worlds”. His Honour proposed orders to consolidate the proceedings using the Jennings’ funding arrangements, provided both applicants agreed within 14 days. If the applicants did not agree within 14 days, then his Honour would decide the application by choosing one of the competing proceedings to go forward: T55.19-26.

30    At that point senior counsel for Jaguar submitted that if the Greentree applicants were prepared to accept the Jennings’ funding arrangements, then there would be no need for consolidation, because the primary judge could give them carriage: T55.32-36. His Honour then enquired of senior counsel for the Greentree applicants as to whether he had instructions to offer funding arrangements “along the lines” of the Jennings’ funding arrangements. Senior counsel for the Greentree applicants informed the primary judge that he did not hold such instructions, and instead made submissions seeking to persuade his Honour that the advantages his Honour saw in the Jennings’ funding arrangements were not pronounced and involved guesswork.

31    Importantly, at no point in the hearing did the primary judge raise the possibility of an order such as Order 2, nor provide an opportunity to the Jennings applicant to be heard as to that. The Jennings applicant would have been perfectly justified in understanding that the Greentree applicants had no opportunity, nor any intention, to cap its legal and funding costs at 25% of any aggregate settlement or judgment. There was no opportunity for the Jennings applicant to make submissions in relation to a proposition that was not on the table.

32    There is no basis for the Greentree applicants’ submission that the primary judge “specifically invited submissions as to whether it would be against principle for his Honour to proceed in that way”. In oral submissions, senior counsel for the Greentree applicants initially sought to defend that submission but ultimately withdrew it. That submission, which had no basis in the evidence, should not have been made.

33    Senior counsel for the Greentree applicants then substituted that submission with a contention that the primary judge put on the table a “best of both worlds” solution in the context of consolidation, and invited submissions as to whether it would be against principle for him to proceed to adopt that solution. On this argument, the primary judge identified one possible “best of both worlds” solution, and senior counsel for Jaguar then identified another “best of both worlds” solution, being that the Greentree applicants could decide to revise their funding arrangements and there would be no need for consolidation.

34    That submission has no merit. Mr Darke’s submission was that “[i]f Gilbert + Tobin are prepared to accept the Maurice Blackburn funding terms, then there’s no … need for consolidation”. And senior counsel for the Greentree applicants promptly said that he had no instructions to meet the Maurice Blackburn funding terms, and instead sought to persuade his Honour that the perceived advantages of those terms were illusory. Again, the Jennings applicant would have been justified in understanding that the Greentree applicants would have no further opportunity, nor any intention, to cap its legal and funding costs at 25% of any aggregate settlement or judgment.

35    The Greentree applicants further contended that through: (a) the orders made on 12 October 2023; (b) the primary judge’s reasons; and (c) by communications from Chambers, his Honour preserved the ability for the Jennings applicant to make submissions in opposition to the orders granting carriage to the Greentree applicants. The Greentree applicants submitted that:

… the primary judge did expressly canvass before the parties the prospect of ascertaining whether G + T and Balance would match the terms upon which the Jennings proceedings was funded. His Honour also made provision for re-listing, indicated that he would allow any party to relist for further submissions in respect of his proposal, and invited further submission after the proposed undertaking was delivered pursuant to order 3, and before it was accepted by the Court pursuant to orders 2 and 4: T 55.19-30.

The Greentree applicants said that it was open to the Jennings applicant to object to the course the primary judge took in the orders and reasons delivered on 12 October 2023, prior to the primary judge’s acceptance of the undertaking proffered by the Greentree applicants. They also said that it was open to the Jennings applicant to propound evidence that she could offer better terms still to those prescribed in the primary judge’s order 2, but the Jennings applicant chose not to do so.

36    That submission is, again, without merit. Order 2 of the orders made on 12 October 2023, provided for the automatic staying of the Jennings proceeding “upon the receipt and acceptance by the Court of the proposed undertaking as an undertaking to the Court”. That order took effect on the date that it was made. It was conditional but self-executing. It is true that the stay did not come into effect until the undertaking was accepted by the Court on 15 November 2023, and also true that Order 5 granted liberty to the parties to apply. But on no reasonable view was it open to the Jennings applicant to re-contest the matters which the primary judge had already decided and in respect of which he had published written reasons.

37    Nor is there anything in the primary judge’s reasons to show that his Honour left open the prospect for the Jennings applicant to re-contest the matters which the primary judge had already decided. Rather, the reasons indicate that his Honour intended that any submissions on 15 November 2023 would relate to whether the form of the proposed undertaking was appropriate. His Honour said (J [104]):

It may be that an undertaking will not be provided or be provided in a form which is said to contain deficiencies. Accordingly, I will require the proposed undertaking to be provided to the Court and served on the solicitors for the Jennings proceeding, and I will give leave to any party to relist the matter for the purposes of further argument and, if there is no further argument, for receipt of the undertaking in open Court.

His Honour did not state that he would hear argument re-contesting the matters the subject of the judgment he had just delivered, and the principle of finality of litigation strongly indicated otherwise.

38    The communication from the primary judge’s Chambers upon which the Greentree applicants sought to rely does not take matters anywhere. They relied on an email from his Honour’s Chambers to the parties on 9 November 2023, which relevantly said:

In the light of the provision of the undertaking by the applicants in NSD1010/2022, Gilbert + Tobin and Balance Legal Capital II UK, his Honour has determined it is appropriate to relist both proceedings for case management at 3 PM on Wednesday, 15 November 2023 in person in Sydney.

His Honour is open to hearing any submissions concerning the appropriate orders to be made.

39    Contrary to the Greentree applicants’ argument, the phrase “any submissions” did not indicate that it was open for the Jennings applicant to re-contest the matters already decided. The only course available to the Jennings applicant following the orders of 12 October 2023 was to seek leave to appeal from those orders, which she did. The invitation to make submissions was obviously in relation to further case management and, given paragraph [104] of the primary judge’s reasons, possibly in relation to the form of the undertaking. It was not an invitation at large.

40    The Jennings applicant thereby established an error sufficient to warrant a grant of leave to appeal, and for the appeal to be upheld.

41    For completeness, we note that we are not persuaded that there was any procedural unfairness in the way in which the primary judge took into account Gilbert + Tobin’s successful conduct of the Toyota class action. The conduct of that case is a matter of public record, including a statement in the reasons for judgment that counsel and the solicitors for the parties had conducted the hearing with great efficiency, courtesy and professionalism which had been of great assistance to his Honour: Williams v Toyota Motor Corporation Australia Limited (Initial Trial) [2022] FCA 344 at [544]. Gilbert + Tobin’s conduct of that case, including the specialist experience that it had gained, was the subject of evidence and submissions before the primary judge. We are not persuaded that his Honour went beyond the evidence and the uncontested matters of public record in reaching the conclusion that he did in relation to Gilbert + Tobin’s superior experience; the primary judge did not “become a witness in the case”.

42    We have made the attached orders. The Full Court will resume the hearing to re-exercise the discretion in relation to the carriage dispute if the consolidation application is not made, or if consolidation is refused by the Court.

Associate:

Dated: 27 May 2024