FEDERAL COURT OF AUSTRALIA

Whittome v Woolworths Group Limited [2025] FCA 1015

ORDERS

THE COURT NOTES THAT:

A.    The issues of liability arising in this proceeding are materially the same as the issues of liability arising in Australian Competition and Consumer Commission v Woolworths Group Limited (VID974/2024) (ACCC proceeding).

B.    On 23 May 2025, orders were made in this proceeding and in the ACCC proceeding to the effect that an initial trial on issues of liability will be conducted with respect to a sample of products as agreed between the parties or determined by the Court.

C.    By interlocutory application dated 20 June 2025, the Respondent sought orders that the Applicant provide security for its costs of this proceeding up to and including the initial trial on issues of liability.

D.    To facilitate the determination of the issues of liability in this proceeding as quickly, inexpensively and efficiently as possible in accordance with section 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and with a minimum of incremental cost, the parties have agreed to resolve the security for costs application on the basis that they would jointly seek and consent to orders to the following effect:

(a)    that the initial trial on liability issues in this proceeding will be heard together with the initial trial on liability issues in the ACCC proceeding (referred to as the joint liability trial);

(b)    the Applicant will take no step in this proceeding, including at the joint liability trial (including but not limited to seeking discovery, filing or adducing evidence, filing or making written or oral submissions, or cross-examining witnesses), except:

(i)    upon application for leave of the Court, for which reasonable prior notice is provided to the Respondent;

(ii)    with the specific leave of the Court; and

(iii)    without prejudice to the Respondent's right to submit that leave should not be granted until the determination of any application by the Respondent for security for costs (should the Respondent exercise its liberty to re-enliven its application);

(c)    the Applicant, on his own behalf and on behalf of Group Members (except persons who opt out of this proceeding under s 33J of the Act), will undertake to be bound by all findings of fact, findings of law and mixed findings of fact and law made in the determination of liability issues in the initial trial in the ACCC proceeding, and to consent to corresponding findings being made in this proceeding, without prejudice to the right of the Applicant to appeal, or seek leave to appeal, any such finding;

(d)    following the joint liability trial, the parties will, to the extent necessary, agree or propose orders pursuant to s 33ZB of the Act which give effect to paragraph (c);

(e)    the Respondent’s application for security for costs will be adjourned indefinitely; and

(f)    if prior to judgment in the joint liability trial being delivered the Applicant seeks leave to take a further step in this proceeding, the Respondent will be at liberty to re-enliven its application for security for costs.

E.    The Applicant, on his own behalf and on behalf of Group Members (except persons who opt out of this proceeding under s 33J of the Act), undertakes to the Court and to the Respondent that the Applicant and Group Members (except persons who opt out of this proceeding under s 33J of the Act) will be bound by all findings of fact, findings of law and mixed findings of fact and law made in the determination of liability issues in the initial trial in the ACCC proceeding, and will consent to corresponding findings being made in this proceeding, without prejudice to the right of the Applicant to appeal, or seek leave to appeal, any such finding.

F.    The Respondent undertakes to the Applicant to apply to be released from its implied undertaking in the ACCC proceeding so that it may provide to the Applicant:

(a)    submissions, evidence and interlocutory applications filed;

(b)    documents discovered; and

(c)    orders made,

in the ACCC proceeding relating to the initial trial on liability issues.

G.    The Respondent undertakes to the Applicant to provide him with:

(a)     a copy of any correspondence between the Respondent and the Court, subject to the ACCC's consent; and

(b)    any draft orders provided to the Court,

in the ACCC proceeding relating to the initial trial on liability issues, including the trial schedule.

H.    The Applicant has liberty to apply to vary these orders prior to judgment in the joint liability trial being delivered if he forms the view that these orders cease to adequately protect the interests of Group Members (including, for example, in the event that the ACCC and the Respondent compromise the ACCC proceeding without the Court determining questions of liability).

THE COURT ORDERS THAT:

Joint Liability Trial

1.    The initial trial on liability issues in this proceeding, the subject of orders made on 23 May 2025, be heard together with the initial trial on liability issues in the ACCC proceeding (Joint Liability Trial).

2.    Orders 12 and 13 of the orders made on 23 May 2025 be vacated.

3.    The Applicant is to take no step in this proceeding or in the ACCC proceeding (and including at the Joint Liability Trial), including seeking discovery, filing or adducing evidence, filing or making written or oral submissions, or cross-examining witnesses, except:

(a)    upon application for leave of the Court, for which reasonable prior notice is provided to the Respondent; and

(b)    with the specific leave of the Court; and

(c)    without prejudice to the Respondent's right to submit that leave should not be granted until the determination of any application by the Respondent for security for costs (should the Respondent exercise its liberty to re-enliven its application).

4.    At the Joint Liability Trial, the evidence in the ACCC proceeding be evidence in this proceeding.

5.    Subject to the Court granting a release to the Respondent from its implied undertaking in the ACCC proceeding, and subject to order 6 below, the Respondent is to provide the Applicant with copies of:

(a)    submissions, evidence and interlocutory applications filed;

(b)    documents discovered; and

(c)    orders made,

in the ACCC proceeding relating to the initial trial on liability issues.

6.    In relation to any documents provided by the Respondent to the Applicant in accordance with order 5 above, and in addition to the usual implied undertaking, the Applicant:

(a)    must comply with any confidentiality arrangements agreed or ordered in the ACCC proceeding in respect of those documents; and

(b)    must comply with any confidentiality arrangements agreed or ordered in this proceeding in respect of those documents (including as to such documents being filed in the proceeding or being relied on in open Court or tendered).

7.    The Applicant is to have access to all transcripts of hearings (both interlocutory and trial) in the ACCC proceeding relating to the initial trial on liability issues.

Security for costs

8.    Subject to order 9, the Respondent’s interlocutory application dated 20 June 2025 seeking security for costs be adjourned indefinitely.

9.    If the Applicant applies for leave of the Court to take a step in this proceeding or in the ACCC proceeding, the Respondent may re-enliven its application for security for costs.

Opt out process

10.    By 29 August 2025, the Applicant provide the Respondent with proposed orders and a proposed notice under ss 33J, 33X and 33Y of the Act to enable Group Members to exercise their right to opt out of the proceeding and notifying them of the relevant matters in these orders.

11.    By 3 September 2025, the Respondent provide its response to the Applicant’s proposed opt out orders and notice.

12.    By 5 September 2025, the parties confer and attempt to reach agreement on the proposed opt out orders and notice.

13.    By 8 September 2025, the parties submit to the Associate to Justice O’Bryan:

(a)    any agreed opt out orders and notice; or

(b)    if agreement has not been reached, any competing opt out orders and notice and any outline of submissions (not exceeding 3 pages) and affidavit in support.

14.    The making of opt out orders be addressed at a case management hearing at 9.30 am on 10 September 2025.

Other

15.    Costs be reserved.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    This proceeding is a representative proceeding brought against Woolworths Group Limited (Woolworths) alleging misleading and deceptive conduct associated with Woolworths’ ‘Prices Dropped’ price promotions, contrary to ss 18 and 29(1)(i) of the Australian Consumer Law, being Sch 2 to the Competition and Consumer Act 2010 (Cth) (ACL). The applicant seeks on behalf of himself and group members compensation for loss or damage pursuant to s 236 of the ACL.

2    On 20 June 2025, Woolworths filed an application seeking security for costs. The parties filed evidence and submissions in respect of that application, and the application was listed for hearing on 7 August 2025.

3    On the eve of the hearing, the parties proposed orders by which the security for costs application would be adjourned indefinitely. At the hearing, I raised questions with respect to certain aspects of the orders proposed by the parties and invited the parties to consider the questions and provide any revised proposed orders and submissions in support.

4    On 21 August 2025, the parties provided revised proposed orders and submissions in support. The parties are largely agreed on the proposed orders, although there are some relatively minor points of difference. The parties indicated that they did not wish to be heard on the points of difference and requested the Court to resolve those matters in chambers. Coincidentally, a further case management hearing in the proceeding had been scheduled for 25 August 2025. At that hearing, the Court sought further submissions from the parties on certain of the issues arising on the proposed orders.

5    I am satisfied that the Court has power, and that it is appropriate, to make orders largely in the form proposed by the parties. These are my reasons for making the orders.

Background

6    On 23 September 2024, the Australian Competition and Consumer Commission (ACCC) commenced a proceeding (VID974/2024) against Woolworths, alleging that:

(a)    between September 2021 and May 2023 (relevant period), Woolworths temporarily increased the prices of at least 266 different products (Affected Products) before placing them on ‘Prices Dropped’ promotions at prices which were higher than, or the same as, the price at which each product had ordinarily been offered for sale prior to the temporary price spike;

(b)    by that conduct, Woolworths represented to consumers that the prices of Affected Products promoted on ‘Prices Dropped’ were discounted when, in fact, the purported discount was illusory; and

(c)    Woolworths thereby made false or misleading representations in relation to the sale of products in Woolworths Supermarkets in breach of ss 18 and 29(1) of the ACL.

7    On 14 November 2024, the applicant commenced this representative proceeding against Woolworths advancing materially the same allegations as the ACCC proceeding, and claiming damages on his own behalf and on behalf of other persons (group members) who purchased one or more Affected Products during the relevant period from Woolworths.

8    As the two proceedings raise the same issues with respect to liability (but not relief), they are being jointly case managed.

9    The representative applicant, Mr Robbie Leigh Whittome, is represented by Gerard Malouf and Partners (GMP Law). The proceeding is not subject to a litigation funding arrangement. GMP Law is conducting the proceeding on a ‘no win no fee basis’. Prior to the recent decision of the High Court in Kain v R&B Investments Pty Ltd [2025] HCA 28 (R&B Investments), GMP Law had informed Woolworths’ solicitors that GMP Law had received instructions from the applicant to apply to the Court for a ‘solicitor’s common fund order’ at the conclusion of the proceeding either in lieu of or in addition to costs otherwise payable, in such percentage as the Court considers just. A solicitor’s common fund order provides for the whole or part of a solicitor’s remuneration to be fixed as a proportion of any moneys ultimately recovered in the proceeding and for that liability to be discharged as a first priority from any moneys so recovered, thereby ensuring that all group members bear a proportionate share of that liability. In R&B Investments, the High Court concluded that the Federal Court does not have power to make a solicitor’s common fund order in circumstances where the solicitor’s conduct is regulated by the Legal Profession Uniform Law (as a law of the State of New South Wales) and, specifically, s 183 of that law: R&B Investments at [11] (Gageler CJ), [35] (Gordon, Steward, Gleeson, Beech-Jones JJ), [148] - [149] (Edelman J) and [181], [209] and [211] (Jagot J). Section 183 stipulates that a law practice must not enter into a costs agreement under which the amount payable to the law practice, or any part of that amount, is calculated by reference to the amount of any award or settlement that may be recovered in any proceedings to which the agreement relates. Solicitor’s conduct in respect of legal proceedings conducted in the Federal Court in Victoria is also governed by the Legal Profession Uniform Law (as a law of the State of Victoria). It follows that it is now unlikely that GMP Law will be able to seek a solicitor’s common fund order in this proceeding.

10    On 23 May 2025, orders were made in both proceedings to the effect that an initial trial on all issues of liability will be conducted with respect to a sample of Affected Products as agreed between the parties or determined by the Court. The parties were informed that the Court proposed to conduct a joint trial on liability issues in both proceedings. The parties raised no objection to that course. Timetabling orders were made in each proceeding to prepare the proceedings for trial.

11    While the Court proposes to conduct a joint trial on all liability issues in both proceedings based on a sample of Affected Products, it is not possible to predict the range of conclusions that may be reached following the initial trial. The outcome of the trial may be mixed, with liability being established in certain circumstances but not in others. The Court’s intention in conducting the trial on the basis of a sample of Affected Products is to resolve issues of liability as quickly, inexpensively and efficiently as possible, consistently with the overarching purpose stated in s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act). Nevertheless, if the outcome of the initial trial is mixed, further steps may need to be taken to resolve the full extent of liability in each proceeding.

Security for costs application and proposed resolution

12    As noted above, on 20 June 2025 Woolworths filed an application seeking security for costs from the applicant in the representative proceeding. The parties filed evidence and submissions in respect of that application and the application was listed for hearing on 7 August 2025.

13    On the day prior to the hearing of the application, the parties to the representative proceeding filed proposed consent orders which included the following orders:

1.    All issues of liability in this proceeding will be fully and finally determined by the judgment on liability in Australian Competition and Consumer Commission v Woolworths Group Limited (VID974/2024) (ACCC Proceeding) (including any appeals therefrom by a party to the ACCC Proceeding), which are the subject of the trial in accordance with order 2 dated 23 May 2025 (as varied by order 1 dated 21 July 2025) and order 1 dated 23 October 2024 in the ACCC Proceeding.

2.    The Applicant and the Group Members (except persons who have opted out of this proceeding under s 33J of the Federal Court of Australia Act 1976 (Act)) will be bound by all findings of fact, findings of law and mixed findings of fact and law made in the determination of the issues of liability in the ACCC Proceeding (including any appeals therefrom by a party to the ACCC Proceeding).

3.    Subject to the following orders, the proceeding be stayed until the Court delivers judgment on liability in the ACCC Proceeding (including judgment on any appeals therefrom by a party to the ACCC Proceeding), on the basis that, pursuant to s 33ZB of the Act, the judgment on liability in the ACCC Proceeding (including judgment on any appeals therefrom by a party to the ACCC Proceeding) will bind the applicant and group members in this proceeding other than any person who has opted out of this proceeding under s 33J of the Act.

4.    Order 3 take effect on the date by which Group Members may opt out of the proceeding under s 33J of the Act, to be fixed by the Court following the process set out in [subsequent timetabling orders].

14    At the hearing on 7 August 2025, the parties to the representative proceeding informed the Court that they had reached an agreement on the disposition of the security for costs application (although the agreement had not been reduced to writing). The parties’ agreement was reflected in the above orders. The parties’ intention was to enable the issues of liability to be determined in the most efficient manner possible and without the incurring of unnecessary or duplicative costs. The elements of the agreement were:

(a)    all issues of liability in the representative proceeding would be determined in accordance with the judgment on liability in the ACCC proceeding;

(b)    the applicant and group members in the representative proceeding, except those who opt out, would be bound by findings made in the determination of issues of liability in the ACCC proceeding;

(c)    the representative proceeding would be stayed until the court delivers judgment on liability in the ACCC proceeding, although the applicant would have liberty to apply to lift the stay if liability is resolved in the ACCC proceeding other than by trial and judgment;

(d)    all extant trial preparation orders in the representative proceeding would be vacated;

(e)    the applicant would have liberty to apply for an order for access to the evidence and submissions filed in the ACCC proceeding; and

(f)    the security for costs application would be adjourned indefinitely.

15    In a broad sense, the parties’ agreement is consistent with the overarching purpose of civil practice and procedure stated in s 37M. In particular, the proposal would minimise the incurring of legal expenditure in the representative proceeding on the issue of liability, with the representative applicant agreeing to be bound by findings made in the determination of issues of liability in the ACCC proceeding. The parties submitted that the Court had power to make orders as proposed under s 37P, as well as ss 33ZB and 33ZF.

16    At the hearing on 7 August 2025, I raised questions with respect to the form of orders proposed by the parties. In particular, I doubted that an order could or should be made to the effect that all issues of liability in the representative proceeding will be fully and finally determined by the judgment on liability in the ACCC proceeding. For the reasons given earlier, the judgment on liability in the ACCC proceeding may not determine all issues of liability in that proceeding, let alone the representative proceeding. I also questioned whether an order could or should be made under s 33ZB purporting to bind group members to a future judgment of the Court. On its terms, s 33ZB operates in respect of a judgment once made and requires the judgment to describe or otherwise identify the group members who will be affected by it. However, there would seem to be no reason why the representative applicant could not give an undertaking to the Court on behalf of himself and group members agreeing to be bound by all findings of fact and law made in the determination of the issues of liability in the ACCC proceeding, as those issues are common issues in the representative proceeding (see Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212 at [49], [53] (French CJ, Kiefel, Keane and Nettle JJ), [141] (Gordon J)).

17    At the end of the hearing on 7 August 2025, I invited the parties to reconsider the proposed orders and provide the Court with any revised from of orders and supporting submissions.

Revised orders and joint submissions

18    On 21 August 22025, the parties jointly provided the Court with a revised form of orders and supporting submissions. The revised form of orders are largely agreed between the parties, but there are a few relatively minor areas of disagreement. The parties advanced submissions in respect of both the agreed orders and the areas of disagreement and indicated that they did not otherwise seek to be heard on the areas of disagreement.

19    In their submissions, the parties summarised their agreement in the following terms:

(a)    the parties agree to an order being made that that the initial trial on liability issues in the representative proceeding would be heard together with the initial trial on liability issues in the ACCC proceeding (referred to as the joint liability trial);

(b)    the applicant will take no step in the representative proceeding, including at the joint liability trial (including but not limited to seeking discovery, filing or adducing evidence, filing or making written or oral submissions, or cross-examining witnesses), except:

(i)    upon application for leave upon reasonable notice; and

(ii)    with the specific leave of the Court; and

(iii)    without prejudice to Woolworths’ right to submit that leave should not be granted until the determination of any application by Woolworths for security for costs;

(c)    the applicant, on his own behalf and on behalf of group members who do not opt out, would undertake to be bound by all findings of fact, findings of law, and mixed findings of fact and law made in the determination of liability issues in the ACCC proceeding, and to consent to corresponding findings being made in the representative proceeding, without prejudice to the right of the applicant to appeal, or seek leave to appeal, any such finding;

(d)    following the joint liability trial, the parties will, to the extent necessary, agree or propose orders pursuant to s 33ZB of the FCA Act which give effect to paragraph (c); and

(e)    on the basis of the foregoing, Woolworths’ interlocutory application for security for costs would be adjourned indefinitely, with liberty to re-enliven the application if, prior to the liability judgment being delivered, the applicant applies for leave to take a further step in the representative proceeding.

20    The revised form of orders proposed by the parties note the above agreement and provide for the following:

(a)    for a joint liability trial, with evidence in the ACCC proceeding being evidence in the representative proceeding;

(b)    the applicant will take no step in the representative proceeding save in the circumstances referred to above;

(c)    for the giving of a notice to group members to enable them to exercise their right to opt out of the representative proceeding and notifying them of the relevant matters in the proposed orders;

(d)    for the vacation of the existing orders relating to the filing of evidence in the representative proceeding;

(e)    subject to the Court granting a release to Woolworths from its implied undertaking, and subject to confidentiality obligations, for Woolworths to provide the applicant with copies of all documents discovered, submissions, evidence or interlocutory applications filed, and orders made, in the ACCC proceeding; and

(f)    for the applicant to have access to all transcripts of case management hearings in the ACCC proceeding and the joint liability trial.

21    The parties submitted, and I accept, that the Court has several concurrently available powers to make the orders sought:

(a)    Section 23 of the FCA Act provides that the Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate. Rule 1.32 of the Federal Court Rules 2011 further provides that the Court may make any order that the Court considers appropriate in the interests of justice. These provisions “give the Court a very broad power to make any orders which are efficient and just in the administration of justice”: Ilumba Pty Ltd v Malouf [2019] FCA 2095, [15] (Derrington J).

(b)    Section 37P of the Act provides a broad power to give directions about the practice and procedure to be followed in relation to a civil proceeding or part thereof, in pursuit of the overarching purpose in s 37M of facilitating the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. This includes orders about the procedure to be followed at trial and in the determination of disputes between the parties.

(c)    Section 33ZF of the Act states that the Court may make any order the Court thinks appropriate or necessary to ensure justice is done in the proceeding. This is a broad supplementary power for the making of such procedural orders as are necessary to ensure that the pleaded issues are resolved justly between the parties: BMW Australia Ltd v Brewster (2019) 269 CLR 574 at [21], [45] (Kiefel CJ, Bell and Keane JJ).

(d)    The Court also has such powers as are incidental and necessary to the exercise of its jurisdiction or the powers expressly or impliedly conferred on it by the legislation governing it: Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514, 561 (Toohey J) and the authorities there cited.

22    The parties further submitted, and I accept, that the interests of group members are sufficiently protected by the following features of the proposed orders.

23    First, subject to the Court granting a release to Woolworths from its implied undertaking in the ACCC proceeding to the extent necessary, Woolworths would provide the applicant with copies of all documents discovered, submissions, evidence and interlocutory applications filed, and orders made, in the ACCC proceeding. The applicant would also be granted access to all transcripts of case management hearings and the joint liability trial. In that way, the applicant would be able to monitor the conduct of the liability phase of the ACCC proceeding in advance of the trial on liability issues and consider whether any further action is necessary to protect the interests of group members in the representative proceeding.

24    Second, the proposed orders would preserve the right of the applicant to apply, on reasonable notice, for the leave of the Court to take a further step in connection with the joint liability trial where this is necessary to protect the interests of group members. The requirement for reasonable notice would obviate the need, for example, for the parties to incur the costs of separate appearances in the representative proceeding except where notice has been given that an application for leave is to be made.

25    Third, it is the parties’ joint intention that, when opt-out orders are made, orders would be proposed which would require that group members be notified of the effect of the proposed orders as part of the notices to be approved by the Court in the opt-out process. Group members can then make an informed decision whether to opt out or to be bound by the determination of liability issues in the representative proceeding in light of the way it will be conducted.

26    The applicant further submitted that, apart from putting in place a regime to minimise the incurring of incremental costs, the proposed orders do not represent a significant departure from the way in which the applicant intended to conduct the liability case. The applicant intended to allow the ACCC to conduct the case on liability and abide by the outcome, subject to supplementing evidence and cross-examination if there were gaps in the ACCC case. As noted above, the proposed orders enable the applicant to continue to monitor the conduct of the liability case by the ACCC and to seek the Court’s leave to take a further step in relation to the liability case if necessary to protect the interests of group members.

27    Having regard to the foregoing, I am satisfied that the Court has power to make orders in the form proposed by the parties and that it is appropriate to make those orders having regard, particularly, to the overarching purposes of civil practice and procedure stated in s 37M of the FCA Act.

Areas of disagreement with respect to the proposed orders

28    As noted above, there are a few relatively minor areas of disagreement between the parties in respect of the proposed orders. This part of the reasons resolves those issues.

Documents discovered by Woolworths in the ACCC proceeding

29    The applicant seeks an order that, in addition to submissions and evidence filed in the ACCC proceeding, Woolworths also provide him with any documents discovered in the ACCC proceeding. The applicant submits that, if documents are discovered in the ACCC proceeding, it is consistent with the underlying rationale of the joint liability trial that such documents should also be provided to him to allow him to review them and decide whether any action should be taken in respect of them (in particularly, tendering the documents in evidence in the event that the ACCC did not do so). Woolworths submitted that, as no orders for discovery have been made in the ACCC proceeding, it is speculative and hypothetical to be addressing the issue now. Woolworths further submitted that it is conceivable that discovery might be so extensive that the cost of the applicant reviewing all of it is a sufficiently large expense that Woolworths would, fairly, wish to re-enliven its application for security for costs.

30    The applicant’s submission should be accepted and Woolworths’ submission rejected. The interests of group members are best protected by the provision of discovered documents to the applicant. When analysed, Woolworths’ concern with respect to costs does not arise. The security for costs application provides security for the costs incurred by Woolworths in successfully defending the proceeding. The costs incurred by Woolworths in giving discovery in the ACCC proceeding will not be (materially) increased by providing the discovered documents to the applicant. The costs incurred by the applicant in reviewing the documents are irrelevant to the security for costs application. If Woolworths is successful in the proceeding, it will not be required to pay those costs. If Woolworths is unsuccessful in the proceeding, it may be required to pay those costs, but that position would not be affected by security.

Correspondence between the ACCC and Woolworths

31    The applicant seeks an order that Woolworths provide the applicant with all correspondence passing between the ACCC and Woolworths concerning the conduct of the ACCC liability trial, including the trial schedule (other than any without prejudice correspondence). The applicant submitted that, if he is to effectually monitor the preparation of the joint liability trial, including any case management hearings beforehand, and consider what, if any, action is necessary on his part to protect his and group members’ interests, this can only be done if he is kept apprised of issues as they develop in advance of such hearings. Woolworths submitted that it has agreed to provide to the applicant a copy of any correspondence between it and the Court (subject to the ACCC’s consent) and any draft orders provided to the Court, concerning the conduct of the ACCC liability trial and/or the joint liability trial. In combination with the provision of submissions, evidence and interlocutory applications, and access to transcripts, Woolworths submitted that this regime is more than sufficient to enable the applicant to monitor the conduct of the liability phase of the ACCC proceedings and consider whether any further action is necessary to protect the interests of group members.

32    Woolworths’ submission should be accepted and the applicant’s submission rejected. In the usual course, there will be a high level of correspondence between the ACCC and Woolworths as issues are discussed and negotiated. It is unreasonable for the applicant to be provided with such correspondence. The applicant would not receive that correspondence even if it were taking an active role in the joint liability trial. The interests of the applicant and group members is sufficiently protected by the other disclosures proposed to be made by Woolworths.

Applicant’s appearance at hearings

33    The applicant seeks an order that, notwithstanding his undertaking not to take a step in the proceeding until the determination of liability issues, he be permitted to appear at any hearing of the representative proceeding (relevantly, at the joint liability trial) and have liberty to seek leave to intervene at any hearing of the ACCC proceeding. The applicant submitted that the right of appearance and to seek leave to intervene is necessary to ensure that his and group members’ interests are adequately represented at hearings, and to ensure that the Court is able to be assisted by the presence of the applicant should issues arise which might enliven the Court’s concern for the interests of the group members in particular. Woolworths opposed the order sought by the applicant, principally on the basis that Woolworths has briefed separate solicitors and counsel in the ACCC proceeding and the representative proceeding and conferring a general right of appearance on the applicant in the representative proceeding would require Woolworths to have its representative proceeding solicitors and counsel present also.

34    I do not accept the applicant’s submission that he should be permitted to appear at any hearing of the representative proceeding (relevantly, at the joint liability trial) and have liberty to seek leave to intervene at any hearing of the ACCC proceeding. Such an order would undermine the agreement reached between the applicant and Woolworths for the resolution of the security for costs application and the efficient hearing and determination of the liability issues at the initial trial. The central element of that agreement is that the applicant agrees not to take any steps in the representative proceeding in respect of the trial of liability issues and will abide by the findings of fact and law made in the ACCC proceeding. As part of the agreement, the applicant will be provided with all relevant material filed in the ACCC proceeding so that he can monitor the proceeding, and the applicant will have liberty to apply to the Court on reasonable notice to Woolworths. Lawyers for the applicant may, of course, attend any and all hearings relating to the initial trial of liability issues to monitor the proceeding. Such attendances does not require a right of appearance. If an unexpected issue arises at a hearing such that the lawyers for the applicant believe that it is necessary to appear before the Court, an application to appear can be made at that time.

Re-enlivening the security for costs application

35    There is a minor disagreement between the parties with respect to the circumstance in which Woolworths may re-enliven its security for costs application. The applicant has proposed an order by which Woolworths may seek to re-agitate its security for costs application if the applicant is granted leave to take a step in the proceeding. Woolworths seeks an order that it be permitted to re-agitate its security for costs application if the applicant applies for leave to take a step in the proceeding.

36    The order proposed by Woolworths is consistent with the agreement reached between the parties. The security for costs application has been adjourned indefinitely on the basis that the applicant takes no step in the proceeding until the determination of liability issues at the initial trial. If the applicant applies to the Court to take a step in the proceeding, it should be open to Woolworths to re-agitate its security for costs application. The manner in which, and time at which, each application is heard will be determined by the Court having regard to all relevant circumstances at the time that the applications are made.

Conclusion

37    In conclusion, orders will be made largely in the form proposed by the parties. In respect of the areas of disagreement, orders will be made in accordance with these reasons for judgment. Orders will also be made to facilitate consultation between the parties with respect to the giving of opt out notices to group members and for the giving of such notices. The parties have also agreed that the costs of and incidental to the making of these orders will be reserved.

Associate:

Dated:    26 August 2025