FEDERAL COURT OF AUSTRALIA

West v Rane (No 2) [2020] FCA 616

ORDERS

THE COURT ORDERS THAT:

1.    Within seven days, the parties are to provide to the Associate to Justice Lee short minutes of order reflecting these reasons.

2.    The legal representatives of the applicants have leave to file submissions within seven days if they wish to be heard on the question as to why an order ought not be made preventing recovery of any costs from the applicants associated with the legal representatives of the applicants attending or preparing for the case management and interlocutory hearings on 12 September 2019, 8 August 2019, 29 October 2019, 18 December 2019, 24 February 2020 and 22 April 2020.

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

REASONS FOR JUDGMENT

LEE J:

A    INTRODUCTION AND BACKGROUND

1    On 18 December 2019, I delivered an ex tempore judgment in West v Rane [2019] FCA 2195 relating to a catalogue of individual claims for personal injury arising from the use of pelvic implant products that had been commenced (or were proposed to be commenced) by a firm of solicitors, AJB Stevens Lawyers (Solicitors). I concluded the judgment with the following cri de cœur (at [18]):

What has occurred until now has been lamentable and has not served to advance the efficient progression of these claims; the situation should not now be made worse by a lack of close attention being given by counsel briefed, to the matters raised in this judgment.

2    The source of lament was the commencement of 14 proceedings in this Court (Federal Proceedings), 28 proceedings in various other courts throughout the Commonwealth (State Proceedings), and apparent confusion as to where approximately 145 other cases of women should be commenced (when it is was evident common issues ran through all, or a substantial subset, of the cases).

3    Regrettably, immediately following the delivery of that judgment, my plea that close thought be given to identifying the optimal procedural path for advancing the claims went unfulfilled. Finally, new counsel briefed by the applicants (Mr Donnellan) came into the matter and focussed properly on the case management dilemma that had emerged and plotted a path forward. These reasons deal with a number of matters that emerge from the keystone cop-like conduct of these claims prior to Mr Donnellan’s involvement and which can be placed, with some oversimplification, into five categories of issues:

(1)    The course that should be taken in relation to Federal Proceedings commenced by persons who are also group members in the following extant class actions: (a) Kathryn Gill & Ors v Ethicon Sàrl & Ors (NSD 1590 of 2012) (Ethicon Class Action); (b) Jodie Philipsen & Anor v American Medical Systems LLC (NSD 35 of 2018) (AMS Class Action); and (c) Lindsey Schofield & Anor v TFS Manufacturing Pty Ltd & Ors (NSD 181 of 2020) (TFS Class Action).

(2)    The course that should be taken in relation to the State Proceedings commenced by persons who are also group members in the Ethicon Class Action, the AMS Class Action and/or the TFS Class Action.

(3)    The course that should be taken in relation to four other Federal Proceedings which are not related to any extant class action.

(4)    Whether 88 clients of the Solicitors who are group members in the Ethicon Class Action (Ethicon GMs) should be given leave to appear and participate in the ordered mediation in the Ethicon Class Action (although this issue is advanced by an interlocutory application made in the Ethicon Class Action, it is convenient to deal with it in these reasons).

(5)    The costs consequences of what has occurred to date in the Federal Proceedings.

4    Prior to dealing with these issues, however, to provide context and an understanding of the nature of what has occurred, it is useful to set out the relevant chronology by focussing on the case which lends its name to these reasons: West v Rane.

B    Relevant Chronology

5    On 25 October 2018, Ms West commenced her proceeding (West Proceeding) in the Supreme Court of New South Wales.

6    On 19 March 2019, Ms West filed a notice of motion seeking transfer of the West Proceeding to the Federal Court. The following day, the matter was listed for directions and Ms West was ordered to file and serve affidavit evidence in support of the motion by 17 April 2019. Ms West did not file or serve any affidavit evidence.

7    On 29 April 2019, Ms West’s motion was listed for hearing before Rothman J. Professor Rane did not appear as he had not yet been served with the statement of claim, and did not know the West Proceeding had been commenced. In advance of the hearing, counsel for Ms West provided written submissions, which stated relevantly that:

48.    In the circumstances of this matter, the applicant respectfully submits:

48.1    The Federal Court has jurisdiction to determine this matter;

48.2    It would be appropriate for this Court to transfer these proceedings to the Federal Court on the following grounds:

48.2.1     The applicant’s lawyers have already filed other similar matters in the Federal Court;

48.2.2. The proceedings will involve witnesses from various States;

48.2.3    Some of the matters involve the same defendants;

48.2.4    If the proceedings are struck out, limitation issues may impede proceedings being recommenced elsewhere.

8    At the conclusion of the hearing, Rothman J transferred the West Proceeding to this Court.

9    On 28 May 2019, Professor Rane’s then solicitors accepted service of the statement of claim (seven months and three days after the statement of claim was filed).

10    On 4 June 2019, the Registry of this Court sent an email to the Solicitors indicating that the matter had now been transferred and assigning a Federal Court matter number (Professor Rane’s solicitors only later became aware of this correspondence). In any event, on 12 June 2019, Professor Rane’s solicitors sent a letter to the Solicitors. It advised that they now acted for Professor Rane, and sought various documents and information. Somewhat remarkably in the light of this, on 14 June 2019, the Solicitors sent an email to the Federal Court enquiring when the matter would be listed, without copying in Professor Rane’s solicitors.

11    What made this worse was that as at 19 June 2019, Professor Rane’s solicitors were ignorant of the fact that the West Proceeding had been formally transferred to the Federal Court; indeed, they had served a proposed notice of motion in the Supreme Court of New South Wales that sought to have the transfer orders set aside alleging material non-disclosure. After unsuccessful attempts to file that application due to the matter having been transferred to this Court, on 28 June 2019, Professor Rane’s solicitors were finally copied into email correspondence between the Solicitors and the Federal Court.

12    The application to set aside the order of Rothman J was not pursued, but promptly, on 5 July 2019, Professor Rane filed an interlocutory application in this Court for transfer of the West Proceeding to the Supreme Court of Queensland.

13    On 15 July 2019, the matter was listed for a first case management hearing before Justice Burley (FCMH). This was an important occasion. As explained in the Central Practice Note: National Court Framework and Case Management (CPN-1) (20 December 2019) (Central Practice Note) at [8.4]:

The first case management hearing is integral to case management. The aim of the hearing is to identify issues at the earliest possible stage. …

14    Justice Burley was immediately alive to the prospect that this individual proceeding could have some connexion with other proceedings in the Court. An understanding of the flavour of what occurred at the FCMH can be obtained by reviewing the following exchange between his Honour and counsel then appearing for Ms West (at T3.6–26):

HIS HONOUR: And how does this matter intersect, if at all, with the class actions that have been heard in relation to the products the subject – quite often, the subject of this sort of surgery? There’s the Ethicon case, Gill v Ethicon, which is one of them.

MR NAYLOR: Quite, and I appeared in that matter, your Honour.

HIS HONOUR: Yes.

MR NAYLOR: They concern different devices.

HIS HONOUR: So your pleading doesn’t identify the device that was implanted.

MR NAYLOR: The pleading identifies a mini-ar[c] sling device that was implanted on 2 September 2014.

HIS HONOUR: Yes. What I meant by that was it didn’t appear to identify the manufacturer.

MR NAYLOR: No, and to be perfectly honest I can’t answer that question for your Honour just at the moment. …

15    Putting to one side that exchange, the only other matter raised at the FCMH that merits noting was that Ms West opposed a transfer of the proceeding to the Supreme Court of Queensland (at T5.14–20).

16    On 8 August 2019, the West Proceeding was again listed for case management before Burley J. Ms West continued to oppose a transfer and applied for the matter to be stood over so that she could obtain an expert report about any commonalities between relevant claims (at T3.1–20). This step, which would have been unnecessary if the Solicitors had given proper attention, prior to the FCMH, to the best mode by which the various claims should be advanced, was misconceived. In any event, Burley J made orders for written submissions and evidence addressing: (a) the issue of commonality between the relevant claims; and (b) “how it is anticipated that the matters would move forward” (at T9.3–12).

17    On 12 September 2019, a third case management was held, and the West Proceeding was listed together with seven other Federal Proceedings. The applicants relied upon the affidavit of Mr Tony Barakat sworn 30 August 2019, but that affidavit did not address when the balance of the claims were to be filed, or how it was anticipated that the matters would move forward collectively, other than to indicate that the solicitors hoped they would all be in the Federal Court. That affidavit deposed (at [11]) the fact that:

The devices implanted in the clients range from 1998-2016. The manufacturers or [sic] the product implanted fall broadly in the following categories:-

(a)    TVTO;

(b)    TVT;

(c)     AMS;

(d)    TFS;

(e)    IVS:

(f)    Monarch Sling;

(g)    Boston Scientific;

(h)     Johnson & Johnson.

18    Given that Mr Barakat was able to identify the manufacturers including “Johnson & Johnson” and “AMS”, it is unclear why the Solicitors would not be aware of the prospect that a number of their clients might have claims which involved the implantation of devices manufactured by entities sued in the Ethicon Class Action (Ethicon respondents) or in the AMS Class Action (which were then on foot in the Court and had been mentioned by Burley J at the FCMH). No thought was apparently given by the legal representatives as to whether the damages sought for personal injury advanced in the Federal Proceedings, or in the State Proceedings, were the same damages the subject of the claim of their clients as group members in the two extant class actions.

19    That affidavit of Mr Barakat also noted (at [22]) that in relation to the Federal Proceedings and the State Proceedings, amended statements of claim “are currently being drafted by senior and junior counsel briefed in those matters and will be available in the next few days”. Despite the apparent involvement of senior and junior counsel, counsel briefed at the case management hearing could not provide useful information to Burley J as to:

(1)    how the applicants intended to proceed in respect of the Federal proceedings (at T3.40–45);

(2)    whether pleadings were to be amended to join the manufacturer/s (at T5.20–40);

(3)    why the Solicitors had not turned their minds to advancing the Federal Proceedings and the State Proceedings as a class action or several class actions; an omission Burley J described as “glaring” (at T6.5–31);

(4)    “the situation as far as [the Ethicon] class action is concerned and any overlap that that or, indeed, the other class action concerning mesh products, which I understand is in this court” (at T7.11–13); or

(5)    “when it was expected that the plaintiffs, plural, having regard to the single representation of the 187 people, are likely to have their ducks in a row so that the respondents can begin to respond in a manner which is collective, rather than individually …” (at T7.23–26).

20    In the absence of the assistance his Honour was entitled to expect at a case management hearing, Burley J remarked, with his Honour’s customary restraint:

(1)    “Now, it seems to me that really we’re wasting everybody’s time here today because I’m not going to order a transfer of the matter into another court or another jurisdiction until I understand whether it’s most efficient for some of it to be dealt with here” (at T6.46–T7.2); and

(2)    “Well, it is possible that there could be a costs order and, indeed, there may be a special costs order about today, but I’m going to reserve that question.” (at T12.31–32).

21    On 29 October 2019, the Federal Proceedings were first listed before me for case management. I refused to deal with any transfer applications on that date noting it was premature to do so “until there has been … some proper hard thinking on the applicants’ side of the bar table as to how [all claims are to be] best wrangled” (at T8.5–9), while noting that my initial impression was that what had occurred to date seemed to be “a scandalous waste of resources and … misuse of the court system …” (at T10.16–17).

22    On 18 December 2019, the matters were again listed for case management before me. The applicants no longer opposed the transfer applications but consented to transfers being made. The applicants (that is, the clients of the Solicitors) also consented to pay the respondents’ costs of and incidental to all case management hearings held in this Court. I pause to note I had (and have) serious misgivings as to whether the consent to pay the respondents’ costs was given by those clients on a fully informed basis.

23    In any event, I refused to make those consent orders (fortuitously as it turned out) for a number of related reasons, which included my concern as to whether the applicants had been properly advised and my reticence in making orders until I knew the full picture of what had gone on and better understood how these cases could best be managed. On the same day I delivered reasons, which were subsequently published as West v Rane [2019] FCA 2195.

24    Alas, the surprises were not yet over.

25    On 24 February 2020, the matters were again listed before me for a case management hearing (the sixth). A few days before that hearing, the TFS Class Action had been commenced (although a copy of the process in the TFS Class Action had not been provided to any respondent, or to my Chambers, in advance of the case management hearing). Based on the proposed short minutes agreed between the parties in December 2019, and the applicants’ subsequent written submissions of 7 February 2020, both the Court and the respondents expected this case management hearing to deal with transfer applications, which were not the subject of opposition by any party.

26    But, without any forewarning, senior counsel for the applicants indicated for the first time (at T4.24-28) that:

… a significant number of the Federal Court applicants, indeed, a number before your Honour and those in other jurisdictions that have been transferred, are currently group members in [the Ethicon] class action.

27    When I unsurprisingly asked why it had taken until 24 February 2020 for this issue to “become clear”, senior counsel replied, engagingly but Delphically: “(t)hat is a mystery” (at T7.16–19). Senior counsel further explained that he had received instructions about group membership that morning (at T7.27–28).

28    Senior counsel advanced an application to adjourn the transfer applications and stay (at least some) of the Federal Proceedings. Obviously enough, the respondents were not in a position to meet this latest volte-face, and I adjourned the matter and made orders requiring precise identification of which of the Federal Proceedings involved Ethicon GMs and the identification of what other applicants in the Federal Proceedings (and plaintiffs in the State Proceedings) were group members in any extant class action. I described the situation, I do not think unfairly, as “a fiasco” (at T16.7).

29    On 16 March 2020, the applicants served a schedule entitled “Commenced Proceedings”, which set out which applicants in the Federal Proceedings and plaintiffs in the State Proceedings were group members in the three class actions. Ms West, for instance, was identified as an AMS group member.

30    There are some variations in relation to the chorology of the other Federal Proceedings, but the above narrative is sufficiently representative for present purposes.

31    In the light of what has occurred and the current state of the Federal Proceedings, I now turn to the issues I need to determine.

C    ISSUE ONE: THE GMs AND CASE MANAGEMENT

32    This issue is best addressed by considering initially the question as to how one deals with the individual claims of the Ethicon GMs? The first step in answering this question is conceptualising in recognisable legal terms what, in fact, has occurred. The Ethicon GMs, by not opting out of the Ethicon Class Action, have decided (or should be regarded for present purposes as having decided) to allow their “claim” (to use that term as it is used in s 33C of the Federal Court of Australia Act 1976 (Cth) (Act)) to be advanced in the Ethicon Class Action and to continue to have the status as represented persons in that Part IVA proceeding.

33    An initial trial has been held of the Ethicon Class Action and the determination of common issues at the initial trial was consistent with allowing the individual claims of group members against the Ethicon respondents to be later advanced: see Gill v Ethicon Sàrl (No 5) [2019] FCA 1905. If that remains the position following any appeal (or any retrial following a successful appeal), then it will become necessary for some individual assessment of the Ethicon GMs’ individual cases against the Ethicon respondents to be determined. Assuming matters proceed as one would expect, the individual claims for personal injury damages by the Ethicon GMs against the Ethicon respondents will be case managed and then determined following the making, at some stage, of “declassing” orders.

34    It follows that by bringing individual proceedings (by reason of bringing the Federal Proceedings), the Ethicon GMs are maintaining claims against alleged wrongdoers other than the Ethicon respondents, but with respect to the same damage. Accordingly, there are presently a number of individual claims brought by Ethicon GMs for the same personal injury damages being advanced against concurrent wrongdoers, although these individual claims for damage have been bifurcated by being maintained in two cases: one (at present), passively by remaining a group member; and the other, actively by agitating the relevant individual proceeding as an applicant.

35    As might be expected in the case of alleged concurrent tortfeasors, in response to an enquiry by me, senior counsel for the Ethicon respondents confirmed that at any future hearing of any of the Ethicon GMs’ claims against the Ethicon respondents, it may be that those respondents will seek relief against the other alleged concurrent tortfeasors by way of contribution (pursuant to statute or in equity).

36    In these circumstances, and as a matter of common sense, it is in the interests of justice that the entire justiciable controversy between the claimants and all those said to be responsible for the wrongs that they allege they have suffered (and the attribution of any responsibility between those alleged concurrent wrongdoers) be determined concurrently; to do otherwise would not only run the risk of potential inconsistency in fact finding, but would be inefficient (and accordingly inimical to facilitating the overarching purpose). Needless to say, this assessment would change in the event that a claimant opted out of the Ethicon Class Action and hence made a deliberate step to restrict any claim for personal injury damages to other than the Ethicon respondents. In these circumstances, the appropriate course is to order a temporary stay of the Federal Proceedings advanced by the Ethicon GMs until further order and then reserve liberty for the stay to be lifted at a time when the Court makes directions in relation to dealing with individual issues in the Ethicon Class Action. At least theoretically, this might occur at a time prior to “declassing”, for example, by sending out a group or sub-group of individual claims to a referee for the purposes of inquiry and report on identified issues. During the course of argument this proposed course did not engender any sustained opposition and became relatively uncontroversial.

37    As noted above, other than the Ethicon GMs, there are other individual proceedings in the Federal Court which fall into the same category. That is, those claims involve individual cases where the applicant also has a claim the subject of either the AMS Class Action or the TFS Class Action. Any of the Federal Proceedings maintained by group members in either the AMS Class Action or the TFS Class Action should, by parity of reasoning, be stayed in the same manner as the Federal Proceedings commenced by the Ethicon GMs. The parties should bring in short minutes of order to allow for these orders to be made in all the relevant Federal Proceedings.

D    ISSUE TWO: THE GMs AND THE STATE PROCEEDINGS

38    As noted above, there are other individual claims in the Supreme Court of New South Wales, the Supreme Court of Queensland, the Supreme Court of Victoria and the District Court of Western Australia, which fall into the same category as discussed in the previous section. That is, there are State Proceedings where plaintiffs in individual proceedings for personal damages are actively bringing a claim for personal injury damages in a state court but are also passively advancing a claim for the same personal injury damages (by not opting out) in one of the three class actions in which they are a group member.

39    What should be done?

40    One theoretical course available would be to enjoin these group members from prosecuting their claim in the state courts, until they have opted out or had their individual claim advanced in the relevant federal class action. To adopt that course, however, would give insignificant recognition to the need for comity in an integrated federal judicature: see Beecham (Australia) Pty Ltd v Roque Pty Ltd (1987) 11 NSWLR 1 at 3 (Kirby P); Wileypark Pty Ltd v AMP Limited [2018] FCAFC 143; (2018) 265 FCR 1 at 7 [11] (Allsop CJ, with whom Middleton and Beach JJ agreed).

41    If a cross-vesting application is made in relation to any State Proceeding which falls into this category, then it will be a matter for that state court exercising federal jurisdiction (because the individual proceeding is part of a wider federal “matter” involving the same claim for personal injury damages) to make a determination as to where the interests of justice lie. It may be that a judge hearing such an application would see that there is some merit in those individual proceedings being transferred to this Court so that they can be dealt with in the same manner as the Federal Proceedings commenced in the same circumstances, but it would be a matter for that judge in the state court to take the course that was regarded by them as best reflecting the interests of justice.

E    ISSUE THREE: THE ETHICON GMs AND THE MEDIATION

42    The Ethicon GMs have made an application that they be permitted to participate in a Court ordered mediation in the Ethicon Class Action on 6 May 2020 and that the parties to the Ethicon Class Action be directed to invite the legal representatives of the Ethicon GMs to participate in that mediation.

43    Following discussion during the course of the interlocutory hearing, all parties were content to adopt an alternative approach. That is, no formal orders will be made allowing the Ethicon GMs (who, it will be recalled, are still represented by the applicants in the Ethicon Class Action) to participate in the mediation, but I will rather leave it to the solicitors and the representative applicants in the Ethicon Class Action to have regard to the interests of the Ethicon GMs as part of the negotiation of any conditional settlement. It seems to me that as a practical matter it would be sensible for those acting for the representative applicants to have some discussion with the lawyers who act for 88 group members in that proceeding. To do otherwise would mean the Ethicon GMs may emerge, at a later settlement hearing, and express concerns as to aspects of the settlement, which might have been addressed during the course of the negotiation if those representing the Ethicon GMs had been “kept in the loop”.

44    To facilitate any such communications, I indicated that I was prepared to make an order allowing discussions, notwithstanding any express or implied confidentiality obligations that would otherwise attend participation in the Court ordered mediation. In the end, neither the Ethicon GMs nor the parties to the Ethicon Class Action expressed any difficulty with the course proposed, and accordingly that order was made in the Ethicon Class Action.

F    ISSUE FOUR: THE other federal proceedings AND TRANSFER

45    The four individual Federal Proceedings with no class action overlap (stand-alone proceedings) are: (a) Tompkins v Natalwala (NSD 889 of 2019); (b) Scott v Rane (NSD 1596 of 2019); (c) Gilbert v State of Queensland (NSD 539 of 2019); and (d) Baxter v Boshell (NSD 1652 of 2019).

46    The central submission of the applicants was that the stand-alone proceedings should not be cross-vested, but rather should be managed together with each other and/or with the TFS Class Action. Perhaps not unsurprisingly in these circumstances, and notwithstanding the early stage of the stand-alone proceedings, the primary issue which seemed to divide the parties was whether there were common factual issues between the stand-alone proceedings inter se; or between the stand-alone proceedings and the TFS Class Action.

47    The applicants’ principal submission, which should be accepted, was that although issue had not been joined, from even a cursory review of the relevant statements of claim, the following substantial areas of commonality exist between the stand-alone proceedings and the TFS Class Action:

(1)    whether, at relevant times pelvic organ prolapse could be treated other than by surgery and/or the use of implants; and what were the risks and/or side-effects of any such alternative treatments;

(2)    whether, at the material times stress urinary incontinence could be treated other than by surgery and/or the use of mesh implants; and

(3)    what were the risks and/or side-effects of any such alternative treatments?

48    Further, as between the four stand-alone proceedings, at least the following potential common issues appear likely to emerge from the defences or evidence, once filed:

(1)    the scope of the respondents’ duty of care to the applicants, including the extent of the duty to warn and/or provide information;

(2)    the scope and proper construction of the implied contractual terms between the plaintiffs and the respondents alleged in each proceeding;

(3)    whether the defendants supplied “in trade or commerce” services to the applicants for the purposes of ss 60 and 61 of The Australia Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth) (ACL);

(4)    the scope and content of the consumer guarantees in ss 60 and 61 of the ACL;

(5)    whether the implants were “product[s] resulting from the services” provided by the respondents for the purposes of the fitness for purpose guarantee in s 61 of the ACL; and

(6)    any other issue of commonality that may emerge from the expert evidence, such as whether materials or design features common to the products supplied to two or more of the applicants were “fit for purpose” for the purpose of s 61 of the ACL.

49    The applicants also submitted that this Court enjoyed a relevant advantage over the state courts given that the stand-alone proceedings had been commenced in different parts of the country. That is, in the event that a critical mass of individual claims or further class actions concerning the same products are commenced in this Court (or transferred to it), the Court will be uniquely placed to determine, with efficiency, what are likely to be claims spanning multiple state jurisdictions concerning such products. Moreover, there are likely to be other efficiencies to be gained from joint case management, such as the use of common experts and the avoidance of multiple case management appearances in different jurisdictions attended by the applicants’ representatives.

50    A number of arguments were advanced by the respondents as to why the stand-alone proceedings should be transferred. They range from what was submitted to be a superior understanding of personal injury cases by state judges, particular procedural reforms adopted by Queensland facilitating the early resolution of personal injury claims (see West v Rane at [9]), and reduced costs. There was also much reference to what was said to be the applicable “state law” said to be relevant to the determination of the controversies.

51    I do not think that there is any real substance in any of these submissions. First, given that all the stand-alone proceedings seem to involve a claim which owes its existence to a law of the Commonwealth, all the cases have been (and always will be) in federal jurisdiction. Accordingly, any state law relevant to the determination of the issues does not apply otherwise than as “surrogate” federal law “picked up” under s 79 of the Judiciary Act 1903 (Cth). Secondly, for my part, the notion that there is some particular complexity about personal injury claims of the present type that means that there may be some difficulty in the case being determined by a Federal Court Judge, is not a submission that I find intuitively attractive or at all persuasive: these are not complex cases, legally or factually. Thirdly, as I noted more generally in relation to the Federal Proceedings in West v Rane (at [16]), if the stand-alone proceedings remained in this Court, I have no doubt that I could put in place cost effective procedures similar to that put in place by the Personal Injuries Proceedings Act 2012 (Qld) to ensure, consistently with the case management imperatives set out in Part VB of the Act, that there is close and early attention given to whether an early settlement is able to be achieved.

52    In West v Rane I said the following (at [5]–[7]):

The principles that inform the determination of these applications that 12 proceedings be transferred to the various state courts pursuant to s 5(4)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) are not in dispute and are well-known. The criterion is whether it is in “the interests of justice” that the matter be determined by another court. Rather than a selection of the most advantageous (or least disadvantageous) forum for one of the parties, the “interests of justice” are to be judged by objective factors to facilitate the identification of the “natural forum” in which it might be expected that the dispute would fall to be resolved, with its concomitant juridical advantages and disadvantages for each party: see Valceski v Valceski [2007] NSWSC 440; (2007) 70 NSWLR 36 at 59-60 [69] per Brereton J.

In James Hardie & Coy Pty Limited v Barry [2000] NSWCA 353; (2000) 50 NSWLR 357 at 379 [95], Mason P endorsed a checklist which had regard to a number of factors: (a) the application of substantive law; (b) any forensic advantage or detriment conferred by procedural law; (c) the choice made by the moving party of the forum and the reasons for that choice; (d) any substantive connexion with the forum; (f) the balance of convenience to parties and witnesses; and (g) the convenience to the court system.

Following the decision of the High Court, however, in BHP Billiton v Schultz [2004] HCA 61; (2004) 221 CLR 400 at 425 [25] (Gleeson CJ, McHugh and Heydon JJ); 439 [77] Gummow J; 465 [167] (Kirby J); and 492 [258] (Callinan J), no particular significances are now attached to the original choice of forum.

53    I have given close consideration as to whether I should implement my preliminary view (expressed at [16] in West v Rane), and belatedly adopted by the applicants, that even if the stand-alone proceedings are not incorporated in a Pt IVA proceeding (which, by reference to the common issues identified at [47]–[48] above, was clearly possible), the stand-alone proceedings should be case managed as if they were, in effect, a representative proceeding, where any common issues can be identified and determined as a preliminary matter in each case (including facilitating a regime seeking to promote early settlement).

54    But there may be some practical difficulties in implementing such a course, particularly at present. If the stand-alone proceedings were to remain in this Court, it would be appropriate for at least some final hearings to be in different Registries of the Court for at least two reasons: first, to ensure that the relevant surrogate federal law applicable in each case is picked up by the Federal Court sitting in the relevant state; and secondly, such a course would, consistently with the overarching purpose, minimise the legal costs incurred by the relevant parties.

55    There would be inefficiency in the four stand-alone proceedings being dealt with by different Judges. The only way that I would keep them in the Federal Court as stand-alone proceedings, would be if they could be case managed by me on my docket and I could give some thought to innovative case management techniques to ensure that they are resolved as quickly and efficiently as possible. With the current demands on my docket, however, I do not think it is practicable for me to conduct hearings in different Registries of the Court at any time in the foreseeable future. Although I may have been able to accommodate a hearing of one of the stand-alone proceedings as early as June this year, with the current demands of my docket, absent settlements, I would not be able to complete a hearing of all of the stand-alone proceedings until the end of 2022 (at the very earliest).

56    I would have had no hesitation in providing for the claims made by the applicants to remain in this Court if they had been advanced in a Part IVA proceeding. For reasons that apparently come down to an inability to find a representative applicant, this has not happened. There is little to be gained by dwelling further on the forensic choices made by those advising the applicants, but I should note in passing that this contention does not make sense to me as it was possible, of course, to find an applicant in the TFS Class Action, which could have been differently constituted (including by joining further insurer respondents).

57    In all the circumstances, because of the practical considerations to which I have made reference, the appropriate course in the interests of justice is to transfer the stand-alone proceedings to the state courts identified as relevant. Despite my acceptance of the applicants’ submissions as to commonality and my rejection, in large part, of the focus of the respondents’ submissions, this is a case where the balance of convenience to the parties and the court system has proved decisive. Again, short minutes can be brought in to effect the transfers.

G    ISSUE FIVE: THE costs CONSEQUENCES

I    The Applications and the Overriding Issue

58    The complex costs orders proposed reflected the complexity of what had occurred. By the time of the interlocutory hearing, the following costs applications were proposed by various parties:

(1)    the following parties seek against the applicants the costs of all case management hearings to date on an indemnity basis, payable forthwith as a lump sum:

(a)    respondent in Brash v Natalwala (NSD 882 of 2019);

(b)    respondent in Tompkins v Natalwala (NSD 889 of 2019);

(c)    respondent in Page v Rooparinesingh (NSD 1673 of 2019);

(d)    first and second respondents in West v Rane (NSD 875 of 2019);

(e)    respondent in Van Tricht v Esler (NSD 1631 of 2019);

(f)    respondent in Amorin-Woods v Saba (NSD 881 of 2019);

(g)    first and second respondents in Scott v Rane (NSD 1596 of 2019); and

(h)    second respondent in Maher v Kim (NSD 1247 of 2019).

(2)    The respondent in Baxter v Boshell (NSD 1652 of 2019) seeks against the applicants that costs of the interlocutory hearing and of 24 February 2020 (including all preparation) be paid on an indemnity and a lump sum basis.

(3)    The following parties seek their costs of, arising from and incidental to all case management hearings and interlocutory hearings on an indemnity and a lump sum basis against the applicants’ solicitor:

(a)    respondent in Gilbert v State of Queensland (NSD 539 of 2019);

(b)    first and second respondent in Brown v Morrow (NSD 1257 of 2019); and

(c)    third respondent in Scott v Rane (NSD 1596 of 2019).

(4)    The applicant seeks:

(a)    in the proceedings commenced by Ethicon GMs, that costs be reserved; and

(b)    in all other matters, that costs be costs in the cause.

59    All these various costs orders are essentially directed to the same problem: who should bear the costs of the unnecessary case management hearings referred to in the chronology set out above?

60    In resolving this question one thing is clear: the respondents should be compensated for the failure of the applicants to grasp the realities of the problems far earlier. Accordingly, this is a clear case where costs should not be left to be costs in the cause or otherwise reserved generally. The real question is as between the applicants and their legal representatives: who should bear the responsibility for any adverse costs order?

61    The possibility of a special costs order being made was raised by Burley J on 12 September 2019 (at the third case management hearing) and, by order 7 made on 24 February 2020 (at the sixth case management hearing), I reserved the question of whether the Solicitors should pay part or all of the costs reserved. More particularly, the issue reserved was whether the costs, or a proportion of them, of any of the Federal Proceedings which are subsequently stayed are to be borne by the Solicitors personally, because of a failure to comply with s 37N(2) the Act. Both in writing and during oral argument, the issue addressed more generally was what costs order should be made in relation to the Federal Proceedings to date. For obvious reasons, I gave leave to the Solicitors to intervene and adduce evidence and submissions on this issue. This leave was exercised and the Solicitors filed evidence and submissions (and were represented separately from the applicants at the hearing by counsel, Mr Lloyd).

II    An Overview of the Submissions of the Solicitors

62    In the course of his able and comprehensive submissions, Mr Lloyd summarised the position of the Solicitors as follows:

(1)    they acknowledge that notice of the overlap between the applicants and the Ethicon Class Action could and should have been given prior to the case management hearing on 24 February 2020, and the Solicitors apologised to the Court and the respondents for the failure to have done so and for the inconvenience caused to the Court and the parties;

(2)    they contend that the question of whether the Court should exercise its discretion to make a costs order against the Solicitors for any or all of the costs of any of the Federal Proceedings should be reserved for later determination, because a determination of that question at this stage would involve real practical unfairness to the Solicitors; and

(3)    if, contrary to the submission in (2) above, the Court determines the issue of all or any of the costs of any of the Federal Proceedings, in the exercise of the Court's discretion, there should be no order made against the Solicitors.

III    Relevant Principles

63    The argument made by the Solicitors focussed heavily on the leading Full Court authorities dealing with personal costs orders against solicitors which, as counsel noted, “pre-date the introduction of ss 37M and 37N” of the Act. Despite this, the Solicitors accepted that the introduction of ss 37M and 37N:

… may have broadened the circumstances in which the Court may make a personal costs order against a lawyer. However, it is appropriate to construe and apply s.37N(2) and (4) in the context of the earlier decisions in personal costs order cases. The Court of Appeal of New South Wales has continued to apply relevant decisions delivered prior to the introduction of s 56 of the Civil Procedure Act 2005 (NSW) in personal costs order cases.

64    Reference was made to my decision in Young v Hughes Trueman Pty Ltd (No 4) [2017] FCA 456. In that case, I noted (at [25]–[27]):

It is often said that the discretion as to costs in s 43 is “wholly unfettered”. In a practical sense this remains true, but … this is perhaps now an over simplification. Since the introduction of Part VB of the Act, s 37N(4) has provided that in exercising the discretion to award costs in a civil proceeding, the Court must take account of any failure of a party to conduct the proceeding in a way consistent with the overarching purpose to facilitate resolution of the dispute according to law and as quickly, inexpensively and efficiently as possible. Similarly, s 37M provides that all civil practice and procedure provisions must be interpreted and applied, and any power conferred must be exercised or carried out, in a way that best promotes the overarching purpose.

Irrespective of whether it is still literally accurate to say that the discretion is “unfettered”, the principles which guide the exercise of a discretion to make orders such as those proposed emerge from the decision of Goldberg J in White Industries (Qld) Pty Ltd v Flower & Hart (1998) 156 ALR 169 and the decisions of the Full Court in Levick v Deputy Commissioner of Taxation (2000) 102 FCR 155 and Macteldir Pty Limited v Roskov [2007] FCAFC 49. Wigney J collected the relevant principles in Mitry Lawyers v Barnden [2014] FCA 918 at [42] as follows:

1.    Instituting or maintaining a proceeding on behalf of a client which has no, or substantially no, prospect of success will not, without more, invoke the jurisdiction to make a costs order against a lawyer.

2.     Something which involves “unreasonable conduct” is required.

3.     What constitutes unreasonable conduct will depend on the circumstances of the particular case.

4.     The element of acting unreasonably involves some deliberate or conscious decision taken by reference to circumstances unrelated to the prospects of success, with either a recognition that there is no chance of success, or an intention to use the proceeding for an ulterior purpose, or to abuse the processes of the court, or with a disregard of any proper consideration of the prospects of success.

5.     The circumstances must involve or result in a serious dereliction of duty owed to the court, or serious misconduct in promoting the course of, and the proper administration of, justice.

6.     An ulterior purpose or an abuse of process cannot be assumed simply because the case is hopeless.

7.     The reason that the mere pursuit of an unmeritorious case is not so sufficient to invoke the jurisdiction to make a costs order against a lawyer is that a party is entitled to have a practitioner act for him or her in an unmeritorious case. The court is concerned to avoid the risks of a practice developing whereby lawyers endeavour to browbeat their opponents into abandoning clients, or particular issues or arguments, for fear of personal costs orders being made against them.

The summary of Wigney J was accepted by the parties as an accurate statement of the principles. To these, I would add two further matters. First, despite the focus on “unreasonable conduct” in the context of non-party costs orders, orders for costs are compensatory, not punitive: see Latoudis v Casey (1990) 170 CLR 534. Secondly, although such orders have been described as “exceptional”, as McColl JA observed in Yu v Cao (2015) 91 NSWLR 190 at 216 [139]:

“[E]xceptional in this context means no more than outside the ordinary run of cases where parties pursue or defend claims for their own benefit and at their own expense ... [t]he ultimate question [being] whether in all the circumstances it is just to make the order.” The power to order non-party costs “is inevitably to some extent a fact-specific jurisdiction and ... there will often be a number of different considerations in play, some militating in favour of an order, some against.”

(emphasis in original)

65    It was further submitted that these principles are broadly consistent with the leading decisions of the Court of Appeal of New South Wales. That Court has held that the power to make personal costs orders against legal practitioners is to be exercised with caution and sparingly: Lemoto v Able Technical Pty Ltd [2005] NSWCA 153; (2005) 63 NSWLR 300 at 320–2 [92] per McColl JA.

66    Mr Lloyd then turned to the relevance of two further matters.

67    The first was the relevance of counsel being briefed. In Fowler v Toro Constructions Pty Ltd [2008] NSWCA 178 at [85]–[87], Basten JA (with whom McColl JA and Young CJ in Eq agreed) held that the fact that a solicitor obtained and relied on counsel’s advice, was a factor which should have given cause for careful consideration before making a personal costs order, and the fact that a solicitor obtains counsel’s advice “and the fact that no order is sought against counsel are all factors which militate against the conclusion that the solicitor alleged a fact without a ‘proper basis’”. Although this is not a case involving an allegation the claims made were without a proper basis, the reasoning is said to apply and although the Solicitors acknowledge that a solicitor who retains and relies on counsel is not immune from a personal costs order, the fact that counsel is retained and the nature and extent of reliance on counsel are relevant matters in the exercise of the Court's discretion.

68    The second was where lawyers facing a potential costs order are constrained by a claim of legal professional privilege, the lawyers are entitled to the benefit of doubt and, in this regard, reference was made to the speech of Lord Bingham (with whom Lord Hoffmann and Lord Rodger agreed) in Medcalf v Mardell [2002] UKHL 27; [2003] 1 AC 120 at 134–5 [23]–[24].

IV    The Submissions on the Evidence and on Application of Principle

69    As a consequence of the application of these principles and cautions, the Solicitors submitted that notwithstanding that it was “hardly surprising” the Court made the order reserving the question of whether a costs order against the Solicitors should be made, the better course is that the determination of whether the Solicitors should pay the costs of the overlap proceedings should be reserved for later determination. If not reserved, it is said the following matters arising from the evidence “tell against a finding that the conduct by the Solicitors involves a ‘serious dereliction’ by them”:

(1)    Mr Barakat, the solicitor with principal conduct of the proceedings, was faced with a difficult and complex problem and did attempt to give consideration to the appropriate procedure to address that problem;

(2)    Mr Barakat believed that the strategy that was adopted of commencing the proceedings which may be stayed in this Court was appropriate and that this strategy was the subject of advice sought from senior and junior counsel;

(3)    the choice of counsel, being senior and junior counsel also retained in the Ethicon Class Action, “was at least arguably prudent”; and

(4)    there is no evidence to support a finding of an abuse of process.

70    Further, the Solicitors stressed that they were constrained from advancing “a full explanation” to the Court and that this was an important consideration in the present case. The evidence is said to reveal that “[t]here plainly are privileged communications, particularly between the Solicitors and counsel … which are capable of being relevant to the exercise of the Court's discretion”. By reference to the speech of Lord Bingham in Medcalf v Mardell (at 135 [23]), it was contended that the present case is not one of those rare cases where the Court is able “to make ‘full allowance’ for the inability of the practitioner to tell the whole story or to conclude that there is no room for doubt” as to what occurred.

V    Consideration

An Observation as to the Relevant Principles

71    The concession by the Solicitors that the introduction of ss 37M and 37N of the Act may have broadened the circumstances in which the Court may make a personal costs order against a lawyer is well founded.

72    In Kadam v MiiResorts Group 1 Pty Ltd (No 4) [2017] FCA 1139; (2017) 252 FCR 298 at 300–1 [1]–[4], I observed in relation to Part VB that:

An informed participant or observer would likely conclude that the conduct of modern litigation reflects a number of interrelated developments, several of which are relevant for present purposes. The first is the increased complexity and size of litigation. The second, connected to the first, but also partly explained by technological innovation, is the size and scale of the evidentiary material placed before courts in the process of quelling disputes. The third is the commercialisation of the law, discussed by a number of economic analysts of civil procedure who have observed that the primary modern method of remuneration of lawyers provides an incentive to maximise work and perform tasks that may genuinely be thought desirable or justifiable, but are unnecessary for the determination of the true issues in proceedings. The fourth is that the courts are an arm of government dependent upon public resources at a time of focus on efficient allocation of those resources.

The response to these and related developments has caused what might be described as a revolution in case management. Over the last 20 years, almost every Australian jurisdiction has introduced a provision by either legislation or by way of Rules of Court, setting out the ‘overriding’ or ‘overarching’ purpose of procedural rules. …

Of course, this stress on active case management is not entirely new nor has it arisen spontaneously. In 1935, the Supreme Court of the United States appointed an Advisory Committee comprised of academics and lawyers (including a former Senator), to prepare a unified system of general rules for federal courts. The procedural rules that resulted, two years later, provided that the rules were to be construed and administered “to secure the just, speedy and inexpensive determination of every action and proceeding”: Federal Rules of Civil Procedure (US), r 1. More recently, in 1996, the report by Lord Woolf, Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales, highlighted how considerations of public and private efficiency necessitated major reform, and the regulatory result of the Woolf Report (Civil Procedure Rules 1998 (UK), r 1.1) was the immediate progenitor of the various Australian case management reforms.

The developments in modern litigation which partly spurred this case management revolution have deep roots. Like turning a battleship, it is to be expected that there is some ‘time lag’ before the changes sought to be wrought by the procedural reforms become fully realised. …

73    Part VB sought to drive behavioural change (and make the battleship turn somewhat more quickly) by, among other things, placing direct obligations on lawyers and by making compliance with the overarching purpose obligation central to determining issues as to costs. This is reflected by s 37N(2) of the Act requiring a party’s lawyer to take account of the duty imposed on the party by the overarching purpose obligation, and to the further obligation to assist the party to comply with that duty. Further, s 37N(4) provides that in exercising the discretion to award costs, the Court must take account of any failure of a lawyer to comply with these obligations. Similarly, s 37M(3) provides that all civil practice and procedure provisions must be interpreted and applied, and any power conferred must be exercised or carried out, in a way that best promotes the overarching purpose.

74    The position in the Federal Court is to be contrasted to that which applies in New South Wales. Section 99 of the Civil Procedure Act 2005 (NSW) deals with the liability of legal practitioners for unnecessary costs. By reason of s 99(1), the section applies:

… if it appears to the court that costs have been incurred –

(a)    by the serious neglect, serious incompetence or serious misconduct of a legal practitioner, or

(b)    improperly, or without reasonable cause, in circumstances for which a legal practitioner is responsible.

75    By the operation of this section, the circumstances in which costs are to be awarded against a lawyer by reason of the failure to comply with the cognate obligations which are imposed on the legal practitioner by state legislation, are specified. These provisions expressly incorporate the necessity for the court to be satisfied that conduct of a particular kind has occurred, being the sort of conduct referred to in the previous case law. Part VB has approached the same problem somewhat differently. In exercising a discretion to award costs, the relevant mandatory obligation is to take account of any failure to comply with the obligations of the lawyer, coupled with the requirement to facilitate the overarching purpose in exercising any power including the power to award costs.

76    Although it is unnecessary for me to form a definitive view for the purposes of this application, it seems to me arguable that the pre-Part VB cases dealing with awards of costs against practitioners need to be approached with some degree of caution to the extent that they are said to delimit the circumstances in which costs can be awarded against Solicitors notwithstanding the proof of a failure to comply with the statutory obligation on lawyers imposed by s 37N(2) of the Act. Put another way, it is arguable the bar has been somewhat lowered in this Court as compared with that applying in New South Wales by reason of s 99(1) of the Civil Procedure Act 2005 (NSW). The reason why this is an issue that is unnecessary to decide, is that I think the conduct of the Solicitors in the present circumstances does rise to the level of unreasonable and unjustifiable conduct within the meaning of those earlier authorities.

The Appropriate Orders

77    It is useful to start by noting that for present purposes I accept the evidence of Mr Barakat at [69] above. It was relevantly unchallenged, and is not inherently unlikely. The consequence is that on the evidence currently before me I accept that the maladroit strategy adopted was fastened upon after at least an attempt to think about the problem, and following advice from senior and junior counsel.

78    There was another aspect of the evidence which is more problematic: that is, the notion the Solicitors were constrained from advancing a full explanation.

79    The relevant privilege said to give rise to that fetter, of course, does not belong to the Solicitors at all, but to the relevant clients. Given the wasted costs are going to be paid by either the clients or their legal representatives, it is far from clear to me as to why it would not be in the client’s interests to waive any claim for privilege over advice given as to the strategy fastened upon by their lawyers as to the mode by which their claim was to be advanced.

80    This is not an example of the problem that can arise acutely when a lawyer is accused of acting unreasonably because of any improper consideration of the prospects of success, or there was an alleged intention to use the proceeding for an ulterior purpose, or to otherwise abuse the processes of the court. In those types of cases, precisely what was said to a client about those topics may be critical to assessing the conduct of the lawyer. Here, however, it is fanciful to conceive that what occurred can be explained away by thinking there may have been prudent advice given to clients that was ignored. Further, despite submissions somewhat obscurely pointing to a real problem in revealing what in fact occurred, it remains unclear to me why it would not have been possible to reveal relevant information as to consideration by lawyers as to the mode by which the claims were to be advanced, without trespassing on confidential and privileged material as to the merits of those claims.

81    Much emphasis was placed by the Solicitors on the need to give them the benefit of the doubt: but there is a big difference between the role of doubt when a batsman is hit on the pads by a ball which might be slipping down the leg side, to the role of doubt when the wicket is thrown down with the batsman stranded six foot shy of the popping crease. The failure of the Solicitors to turn their minds appropriately and promptly to how the claims in which they were instructed should be advanced consistently with the overarching purpose was not a close run thing and sensibly (and to the credit of the Solicitors), their Counsel did not suggest otherwise.

82    The problem in lack of access to the privileged material does not go to the question of whether the Solicitors were responsible for this failure. They were responsible – as Mr Lloyd correctly recognised. Nor does any opaqueness caused by a lack of access to privileged material present a difficulty in assessing whether the Solicitors or their clients should bear the responsibility for this failure. Clearly, it is far more probable than not that no part of this fiasco is the fault of the clients.

83    The real problem occasioned by any lack of access to privileged material goes to the question of the fair attribution of responsibility as between the Solicitors and those it is suggested they relied upon to give them advice.

84    It would occasion an unfairness to counsel briefed by the Solicitors to make any findings as to precisely what passed between the Solicitors and counsel. Although on the evidence in the current application I have been content to proceed on the basis of Mr Barakat’s unchallenged evidence that he discussed strategy with counsel, I am acutely aware that counsel have not had the opportunity of either putting on evidence or being heard, and I would not make any order affecting the rights of counsel without providing them with that opportunity.

85    It seems to me that the appropriate course is to make an order that the Solicitors pay the respondents’ costs of each of the case management hearings following the second of those case management hearings. There is simply no reason why the clients of the applicants should be required to bear the costs of those hearings nor is there any reason why the respondents should not have their costs of those hearings.

86    Given that I have concluded that the Solicitors are to bear the costs of those hearings personally because of a failure to comply with the duty imposed by s 37N(2), the consequence of this conclusion is that the Solicitors must not recover these costs from their clients: s 37N(5).

87    Further, I note my preliminary view that the Solicitors (or indeed any legal representative of the applicants) should not recover costs associated with attending or preparing for these hearings from their clients pursuant to the relevant contracts of retainer. Leaving aside any statutory or equitable power, the Court has an implied power to control its own processes and the conduct of lawyers who appear before it. My tentative view is that I do not consider it is appropriate that the applicants should be visited with the necessity to fulfil any obligation to pay costs to lawyers who, in my view, have failed to comply with the overarching duty in the way that I have described. I am conscious, however, that this was not the subject of any submissions by the Solicitors. Accordingly, I will provide the Solicitors with leave to file submissions within seven days if they wish to be heard on the question as to why an order preventing recovery of these costs qua the clients ought not be made.

88    Having reached these conclusions, I do not consider that I should make an award that the costs be paid on an indemnity basis. The case management hearings dealt with a variety of issues and much time was taken up by the respondents advancing arguments as to why various procedural steps should be taken, including transfer applications, which had minimal merit. I recognise the fact that there are differences between the individual cases, but it is impossible to approach a task such as the present without adopting a somewhat “broad brush” approach, and the overall justice of the case seems to me to be best reflected by an order that the respondents have their costs of the hearings on a party-party basis. I do not propose to make any orders for costs in relation to the various transfer applications. This extends to the applications made in the four stand-alone proceedings which, although successful, were successful because of practical matters concerning the demands on my docket, and not because of the focus of submissions made by the respondents.

89    Nor do I consider that the costs should be paid forthwith. This is for two reasons. First, the claims are continuing although the non-transferred Federal Proceedings have been the subject of a temporary stay. It is appropriate that all costs payable either in favour or adverse to the respondents should be paid at the conclusion of the proceedings, subject to any earlier compromise between the parties.

90    But there is a second and further reason why to make the costs orders payable forthwith may operate an injustice in the circumstances of this case. This is because I propose to reserve liberty for the Solicitors to seek an order that any other legal representative engaged in relation to the case management hearings on behalf of the applicants make contribution to, or be jointly liable for, the costs that would otherwise be payable solely by the Solicitors.

91    It is a matter for the Solicitors as to whether they wish to advance such a claim. Given that counsel for the Solicitors has stressed that it would be inappropriate until the substantive issues have been determined for further material to be disclosed as to the nature of the communications between the Solicitors and counsel, it seems more likely for it to be appropriate that any such application by the Solicitors, if it is made, be heard at the conclusion of the proceedings when the substantive issues have been determined. For the sake of clarity, I note that I do not propose to reserve this liberty in relation to the stand-alone proceedings, which will be transferred – but any injustice caused by the current order requiring the Solicitors to pay the whole of the costs of the relevant case management hearings could be ameliorated, if it was appropriate to do so, by an order made at the conclusion of the proceedings that remain in the Federal Court.

92    It goes without saying that if such an application is made, the matter should be listed before me for directions to be made, including fashioning orders so that any person against whom any relief is sought is provided with the necessary procedural fairness.

H    CONCLUSION

93    A number of orders need to be made to reflect these reasons. I will ask that the parties provide to my Associate within seven days short minutes of order reflecting these reasons. The legal representatives of the applicants, if they so wish, can also provide a short submission within the same period on the topic referred to in [87] above.

94    I should make a final point. One matter raised by the Solicitors was that if the Court determined now that the Solicitors should bear part or all of the costs, the Solicitors also face the possibility of a later application for different costs, presumably on different grounds of which the Solicitors have no notice, by parties to the proceedings and this places the Solicitors in a difficult position, in circumstances where they are entitled as a matter of procedural fairness to full notice of any complaint made against them. This concern is misconceived. Subject to any application made to attribute responsibility as between the lawyers for the applicants, the orders I propose are the only costs orders that will be made concerning the case management hearings and the interlocutory applications made at those hearings.

Associate:

Dated:    11 May 2020