Kelly v Willmott Forests Ltd (in liquidation) (No 2) [2013] FCA 732

Kelly v Willmott Forests Ltd (in liquidation) (No 2) [2013] FCA 732

Although substantial security was appropriate and $6.58 million was the starting point, the Court should not presently fix security or stay the proceedings because the risk of stultification could not be fairly assessed without allowing the applicants to seek rateable contributions from both unidentified and known group members. Contacting unidentified group members could reduce unfairness within the class and reduce the burden on known group members. Security should be staged, and case management considerations favoured a short process for seeking contributions and obtaining explanations for refusal before final determination of quantum or any stay.

Jurisdiction
Australia
Judgment Date
26 July 2013
Procedural Posture
Related Representative Proceedings Under Pt IVA Involving Applications for Security for Costs / Remitted Application After Full Court Appeal Requiring the Docket Judge to Fix the Amount, Manner and Terms of Security
Outcome
The Court did not presently fix final security or order a stay. It ordered immediate steps to enable the applicants to contact unidentified group members and proposed further directions for seeking contributions, with the form of further orders to be addressed at a case management conference.
Legal Topics
['security for Costs in Representative Proceedings Under Pt Iva' 'quantum and Staging of Security' 'contributions From Unidentified Group Members' 'stay of Proceedings' 'reopening to Admit Fresh Evidence' 'case Management']
['practice and Procedure' 'representative Proceedings' 'security for Costs'] ['security for Costs in Representative Proceedings Under Pt Iva' 'quantum and Staging of Security' 'contributions From Unidentified Group Members' 'stay of Proceedings' 'reopening to Admit Fresh Evidence' 'case Management']

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Procedural Posture

Related Representative Proceedings Under Pt IVA Involving Applications for Security for Costs / Remitted Application After Full Court Appeal Requiring the Docket Judge to Fix the Amount, Manner and Terms of Security

Legal Issues

  1. 1 ['What amount of security for costs should be fixed for the three related class actions.' 'Whether security should be assessed by reference only to the known group members or whether contributions should also be sought from unidentified group members.' 'Whether the proposed security would stultify the proceedings or be oppressive to group members.' 'Whether security should be staged and whether a stay should be ordered if security is not provided.' 'Whether any later application to reopen the case to adduce further evidence should be entertained.']

Ratio Decidendi

Although substantial security was appropriate and $6.58 million was the starting point, the Court should not presently fix security or stay the proceedings because the risk of stultification could not be fairly assessed without allowing the applicants to seek rateable contributions from both unidentified and known group members. Contacting unidentified group members could reduce unfairness within the class and reduce the burden on known group members. Security should be staged, and case management considerations favoured a short process for seeking contributions and obtaining explanations for refusal before final determination of quantum or any stay.

Court Disposition

The Court did not presently fix final security or order a stay. It ordered immediate steps to enable the applicants to contact unidentified group members and proposed further directions for seeking contributions, with the form of further orders to be addressed at a case management conference.

Orders

  • ['The Willmott Respondents were ordered to provide the grower registers and other information to the solicitors for the applicants so that they could contact the unidentified group members seeking contributions to security for costs.' "The applicants were ordered to pay the respondents' costs of the hearings of the...