Kajula Pty Ltd v Downer EDI Ltd

(2024) 76 VR 75; [2024] VSCA 236

Victorian Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Group proceedings
3. › Multiplicity dispute
4. › Carriage dispute between competing class actions
5. › Consolidation of proceedings
6. › Whether cooperation leading to consolidation is a relevant factor
7. › Whether judge erred in weighing relevant factors
8. › Supreme Court Act 1986 (Vic), s 33ZF
9. › Civil Procedure Act 2010 (Vic), ss 7, 8, 9
1. Appeal
2. › Standard of appellate review
3. › Exercise of power under s 33ZF of Supreme Court Act 1986 (Vic)
4. › Whether decision resolving multiplicity dispute is discretionary
5. › House v The King standard applied
6. › Whether legal criterion tolerates range of outcomes
1. Appeal
2. › Leave to appeal
3. › Interlocutory order on matter of practice and procedure
4. › Whether real prospect of success
5. › Whether substantial injustice established
6. › Tight rein on appeals from practice and procedure decisions

Quick Take

Decisions resolving multiplicity disputes under s 33ZF of the Supreme Court Act 1986 (Vic) are discretionary and attract the House v The King standard of appellate review, not the correctness standard. Cooperation between representative plaintiffs and their lawyers leading to consolidation of competing group proceedings is a relevant factor in determining multiplicity disputes, grounded in both s 9(2)(b) of the Civil Procedure Act 2010 (Vic) and the authorities. Cooperation and competition are not binary options — both may coexist and lead to improved outcomes for group members. The economic logic of a free market is not directly applicable to multiplicity disputes.