Klemweb Nominees Pty Ltd (as trustee for the Klemweb Superannuation Fund) v BHP Group Limited [2019] FCAFC 107

Klemweb Nominees Pty Ltd (as trustee for the Klemweb Superannuation Fund) v BHP Group Limited [2019] FCAFC 107

On appeal, the Court determined the primary judge erred in devaluing the no-win/no-fee model as a comparator and in finding a model with external funder was necessarily preferable. Leave to appeal was granted and appeal partly allowed on this ground, leading to orders for consolidation of proceedings (Impiombato and Klemweb), ensuring the best interests of group members and inclusion of relevant claims. Court found no error in refusal to approve contingency fee-payment common fund order due to deficient drafting and concerns with statutory policy coherence; ultimately, reasonable, case management-based discretion was exercised regarding stays and consolidation.

Jurisdiction
Australia
Judgment Date
28 May 2019
Procedural Posture
Appeal/applications for Leave to Appeal (representative Proceedings/class Actions) / Appellate Disposition and Case Management (orders for Consolidation, Permanent or Temporary Stay, Costs)
Outcome
Leave to appeal granted in Klemweb and Impiombato proceedings (limited grounds); appeal allowed in part. Leave to appeal refused for LACERA. Cross-appeal by BHP dismissed. Orders for consolidation of Impiombato and Klemweb proceedings, and directions for cooperative litigation protocol and costs.
Legal Topics
['class Actions' 'representative Proceedings' 'litigation Funding' 'consolidation of Proceedings' 'costs' 'continuous Disclosure' 'misleading or Deceptive Conduct']
['civil Procedure' 'commercial Law' 'corporations Law'] ['class Actions' 'representative Proceedings' 'litigation Funding' 'consolidation of Proceedings' 'costs' 'continuous Disclosure' 'misleading or Deceptive Conduct']

Case Brief

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Procedural Posture

Appeal/applications for Leave to Appeal (representative Proceedings/class Actions) / Appellate Disposition and Case Management (orders for Consolidation, Permanent or Temporary Stay, Costs)

Legal Issues

  1. 1 ['Resolution of competing representative (class action) proceedings' 'Appropriate funding and costs model for class actions' 'Application of s 183 of Legal Profession Uniform Law (contingency fees)' 'Permanent and temporary stays of overlapping proceedings' 'Criteria for consolidation of proceedings' 'Impact of claim periods and group member definitions']

Ratio Decidendi

On appeal, the Court determined the primary judge erred in devaluing the no-win/no-fee model as a comparator and in finding a model with external funder was necessarily preferable. Leave to appeal was granted and appeal partly allowed on this ground, leading to orders for consolidation of proceedings (Impiombato and Klemweb), ensuring the best interests of group members and inclusion of relevant claims. Court found no error in refusal to approve contingency fee-payment common fund order due to deficient drafting and concerns with statutory policy coherence; ultimately, reasonable, case management-based discretion was exercised regarding stays and consolidation.

Court Disposition

Leave to appeal granted in Klemweb and Impiombato proceedings (limited grounds); appeal allowed in part. Leave to appeal refused for LACERA. Cross-appeal by BHP dismissed. Orders for consolidation of Impiombato and Klemweb proceedings, and directions for cooperative litigation protocol and costs.

Orders

  • ['Leave to appeal granted limited to grounds 1-5 (Klemweb, Impiombato) and relevant parts of draft notice of appeal stand as notice of appeal.' 'Appeal allowed in part (grounds 3, 4, 5 only); orders of primary judge set aside as relevant.' 'Applicants and legal representatives to confer and propose consolidation...