Perera v GetSwift Limited [2018] FCAFC 202

Perera v GetSwift Limited [2018] FCAFC 202

The Full Court affirmed the power to make permanent stays of duplicative class actions under inherent, statutory, and equitable powers when required by the interests of justice and the efficient management of litigation, but found the primary judge made no appealable error in ordering stays here. The Webb Proceeding was reasonably preferred based on comparative likely returns to group members under proposed funding structures and costs assumptions. However, the Court erred in restraining Perera's solicitors from communicating with their clients, as there was no evidence of misleading or improper conduct and this unjustifiably interfered with the solicitor-client relationship.

Parties
Applicant: Dwayne Cavan Shanahan Perera; First Respondent: GetSwift Limited (ACN 604 611 556); Second Respondent (nsd 950/2018 and NSD 964/2018), Third Respondent (nsd 951/2018): Joel Macdonald; First Respondent (nsd 951/2018): Raffaele Webb; First Applicant (nsd 964/2018): Shaun McTaggart; Second Applicant (nsd 964/2018): Samantha McTaggart; Third Respondent (nsd 964/2018): Bane Hunter
Jurisdiction
Australia
Judgment Date
20 November 2018
Procedural Posture
Appeals From Interlocutory Orders in Representative Proceedings (securities Class Actions) / Appellate (full Court) Decision on Leave and Merits
Outcome
Leave to appeal granted; appeals dismissed in respect of permanent stay orders for Perera and McTaggart Proceedings; solicitor restraint order set aside; leave to appeal refused against the common fund order.
Legal Topics
Competing Class Actions, Permanent Stays (abuse of Process), Class Closure and Consolidation, Multiplicity of Proceedings, Common Fund Orders, Solicitor Group Member Communications
Representative Proceedings (class Actions) Civil Procedure Corporate Law Competing Class Actions Permanent Stays (abuse of Process) Class Closure and Consolidation Multiplicity of Proceedings Common Fund Orders +1 more

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Parties

Dwayne Cavan Shanahan Perera

Applicant

GetSwift Limited (ACN 604 611 556)

First Respondent

Joel Macdonald

Second Respondent (nsd 950/2018 and NSD 964/2018), Third Respondent (nsd 951/2018)

Raffaele Webb

First Respondent (nsd 951/2018)

Shaun McTaggart

First Applicant (nsd 964/2018)

Samantha McTaggart

Second Applicant (nsd 964/2018)

Bane Hunter

Third Respondent (nsd 964/2018)

Procedural Posture

Appeals From Interlocutory Orders in Representative Proceedings (securities Class Actions) / Appellate (full Court) Decision on Leave and Merits

Legal Issues

  1. 1 When should the Court order a permanent stay of representative proceedings in the context of competing securities class actions?
  2. 2 What is the scope and source of the Court’s power to stay or manage overlapping class actions?
  3. 3 How should the Court select between competing funded class actions?

Ratio Decidendi

The Full Court affirmed the power to make permanent stays of duplicative class actions under inherent, statutory, and equitable powers when required by the interests of justice and the efficient management of litigation, but found the primary judge made no appealable error in ordering stays here. The Webb Proceeding was reasonably preferred based on comparative likely returns to group members under proposed funding structures and costs assumptions. However, the Court erred in restraining Perera's solicitors from communicating with their clients, as there was no evidence of misleading or improper conduct and this unjustifiably interfered with the solicitor-client relationship.

Court Disposition

Leave to appeal granted; appeals dismissed in respect of permanent stay orders for Perera and McTaggart Proceedings; solicitor restraint order set aside; leave to appeal refused against the common fund order.

Orders

  • Applicant granted leave to appeal in all three matters
  • Appeals (concerning permanent stays) dismissed in Perera and McTaggart Proceedings