Judge fears tying Federal Court’s hands in AMP class action battle
Class Actions June 28, 2018 8:57 pm By Miklos Bolza | Sydney

A NSW Supreme Court judge has voiced concerns in an unprecedented jurisdictional battle that a decision that leaves competing class actions against AMP still raging in separate courts may force the Federal Court into a corner.

“Is it appropriate for me to make a decision to which [Federal Court Justice John Middleton] may say, ‘He gives me no choice’?” Justice James Stevenson asked lawyers for the multiple actions, who were crammed in court Thursday to argue over where the cases should be heard.

Only one of the five shareholder class actions is formally before the NSW Supreme Court, but the law firm leading the case — Quinn Emanuel — argues in an injunction application that the four other actions should be temporarily stayed until August, when the Federal Court hears an application by AMP to centralise all the proceedings in the state court.

Judge Stevenson also heard arguments Thursday over separate applications from Maurice Blackburn and Shine Lawyers to move the Quinn Emanuel class action to the Federal Court, the home of their AMP cases, as well as those filed by Slater & Gordon and Phi Finney McDonald.

The debate over multiple class actions across multiple jurisdictions is a first of its kind in Australian litigation history, the court heard.

And refusing both transfer applications and the injunction could “put the weight” of a significant decision on Judge Middleton, Judge Stevenson said.

AMP barrister Steven Finch, SC, told the judge that feeling forced into action to spare the Federal Court resulted in the same outcome.

“That’s binding Your Honour’s hands. It’s bad in both ways,” Finch offered.

The barrister acting for the Quinn Emanuel class action, John Sheahan, QC, said the choice was easy — the matter should be heard in the NSW Supreme Court because Quinn Emanuel was the first to file. It was also the “natural forum”, he said, given that AMP’s head office was in NSW, as were the key actions, witnesses and documents in the case, he said.

“What should have happened was that the applicants now in the Federal Court, being apprised of this proceeding in this court, should have done the same thing and made an application in this court,” he said.

“The ‘you’ve only got yourself to blame’ submission,” Judge Stevenson joked.

Barrister Cameron Moore, representing the Maurice Blackburn class action, noted that by the time his instructing solicitors had filed their class action, there were already three cases in the Federal Court and only one in the Supreme Court.

The “we brought this on ourselves” argument doesn’t “properly characterise on a factual level what is happening in these proceedings,” he said.

Robert Weber, SC, for the Slater & Gordon-led class action, added his voice, saying that when that case was filed, there was one case in each court. “We were entitled to commence in any court that had jurisdiction,” he said.

That Quinn Emanuel’s was first to be filed was nevertheless still important, AMP’s Finch chimed in, and “the importance of that is anyone commencing action in a different court in a different location creates their own tension,” he told the judge.

Judge Stevenson reserved his judgment.

The cases are being billed as among the largest shareholder class actions ever in Australia.

Testimony at the Banking Royal Commission revealed AMP had charged customers fees for no service and misled the Australian Securities & Investments Commission about the practice.

The revelations sent AMP’s share price plummeting by more than 10 percent, wiping $2 billion off the company’s market valuation. The company’s CEO and chairwoman resigned, as did three AMP board members, and its group general counsel was terminated.

ASIC’s investigation is ongoing.

AMP is represented by Herbert Smith Freehills.

Barrister William Edwards appeared for the PFM class action; Ian Pike, SC, appeared for the Shine Lawyers action.

The Quinn Emanuel case is Marion Antoinette Wigmans v AMP Limited. The PFM case is Wileypark Pty Ltd v AMP Limited; the Shine Lawyers case is Andrew Georgiou v AMP Limited; the Slater & Gordon case is Fernbrook (Aust) Investments Pty Ltd v AMP Limited; and the Maurice Blackburn case is Komlotex Proprietary Limited as Trustee for Breda Sinclair Industries Superannuation Fund v AMP Limited.

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Miklos Bolza

Miklos Bolza has been a journalist for three years. He has written for a variety of publications, including NZ Lawyer, HRD Australia, and Australian Broker. He is currently the Sydney court reporter for Lawyerly.