FEDERAL COURT OF AUSTRALIA Perera v GetSwift Limited (No 2) [2018] FCA 909 File number: NSD 226 of 2018 NSD 440 of 2018 NSD 580 of 2018 Judge: LEE J Date of judgment: 15 June 2018 Catchwords: COSTS – resolution of costs applications following orders made to permanently stay two of three representative proceedings – where orders for costs sought by respondents in respect of the resolution of a multiplicity dispute – where orders are sought by an applicant in one proceeding against a non-party to that proceeding – where orders sought in respect of the successful representative party's application for injunctive relief against an unsuccessful representative applicant REPRESENTATIVE PROCEEDINGS – power to award costs against group members – proper construction of s 43(1A) of the Federal Court of Australia Act 1976 (Cth) Legislation: Federal Court of Australia Act 1976 (Cth), Pt IVA, ss 33ZF, 37M(3), 43, 43(1), 43(1A) Federal Court Rules 2011, Div 9.2 Cases cited: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 Webb v GetSwift Limited [2018] FCA 783 Perera v GetSwift Limited [2018] FCA 732 Dymocks Franchise Systems (NSW) Pty Ltd v Todd [2004] UKPC 39; [2004] 1 WLR 2807 Date of hearing: 8 June 2018 Registry: Sydney Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 47 Counsel for the Applicant: Mr WAD Edwards Solicitor for the Applicant: Squire Patton Boggs Counsel for the Respondents: Mr M Darke SC and Mr A Shearer Solicitor for the Respondents: Quinn Emanuel Urquhart & Sullivan Counsel for the Applicants in NSD440/2018: Mr G Rich SC and Dr B Kremer Solicitor for the Applicants in NSD440/2018: Corrs Chambers Westgarth Counsel for the Applicant in NSD580/2018: Mr D Collins QC and Ms J McDonald Solicitor for the Applicant in NSD580/2018: Phi Finney McDonald ORDERS NSD 226 of 2018 BETWEEN: DWAYNE CAVAN SHANAHAN PERERA Applicant AND: GETSWIFT LIMITED First Respondent JOEL MACDONALD Second Respondent JUDGE: LEE J DATE OF ORDER: 15 JUNE 2018 THE COURT ORDERS THAT: 1. By 9 am on 19 June 2018, the parties provide to the Associate to Justice Lee orders reflecting these reasons together with such other orders arising from the case management hearing in proceedings NSD 580 of 2018 on 15 June 2018. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. ORDERS NSD 440 of 2018 BETWEEN: SHAUN MCTAGGART First Applicant SAMANTHA MCTAGGART Second Applicant AND: GETSWIFT LTD First Respondent JOEL MACDONALD Second Respondent BANE HUNTER Third Respondent JUDGE: LEE J DATE OF ORDER: 15 JUNE 2018 THE COURT ORDERS THAT: 1. By 9 am on 19 June 2018, the parties provide to the Associate to Justice Lee orders reflecting these reasons together with such other orders arising from the case management hearing in proceedings NSD 580 of 2018 on 15 June 2018. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. ORDERS NSD 580 of 2018 BETWEEN: RAFFAELE WEBB Applicant AND: GETSWIFT LTD First Respondent JOEL MACDONALD Second Respondent JUDGE: LEE J DATE OF ORDER: 15 JUNE 2018 THE COURT ORDERS THAT: 1. By 9 am on 19 June 2018, the parties provide to the Associate to Justice Lee orders reflecting these reasons together with such other orders arising from the case management hearing in this proceeding on 15 June 2018. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT LEE J: A Introduction 1 On 23 May 2018, for reasons explained in Perera v GetSwift Limited [2018] FCA 732 (principal judgment), I made orders permanently staying two of three class actions that had been filed claiming relief against GetSwift and other respondents. These reasons assume familiarity with the principal judgment. 2 One of the orders made in the unstayed class action, the Webb Proceeding, was to list a case management hearing on 8 June 2018 for the purpose, among other things, of approving an opt out notice in the Webb Proceeding. At that case management hearing, I also foreshadowed that I would deal with any cost issues arising from my orders staying the Perera Proceeding and the McTaggart Proceeding. I propose, in the Webb Proceeding, following a further hearing on 15 June 2018, to deliver separate reasons in relation to a range of matters which arise concerning the future conduct of the Webb Proceeding. These reasons are directed to a narrower issue, that is, the cost consequences that flow from the principal judgment. 3 There are two categories of costs applications which require determination. 4 The first category is costs applications made by the respondents as follows: (a) that the applicants in the Webb Proceeding, the Perera Proceeding and the McTaggart Proceeding pay all the respondents' costs of and incidental to the resolution of issues concerning the multiplicity of proceedings (including all associated hearings) which were the subject of the judgment in the principal judgment; and (b) an order that Mr Webb pay the respondents' costs of and incidental to applications made by Mr Webb on 9 April 2018 to intervene in the Perera Proceeding and the McTaggart Proceeding (Intervention Application). 5 The second category is a series of costs applications made by Mr Perera in the Perera Proceeding by interlocutory application dated 30 May 2018, seeking an order against Mr Webb for: (a) costs incurred by Mr Perera as a representative party in the Perera Proceeding prior to the resolution of the multiplicity dispute; (b) Mr Perera's costs of: (i) the Intervention Application; (ii) the multiplicity dispute; and (iii) the application made by Mr Webb for an injunction or s 33ZF orders (being an application the subject of my reasons in Webb v GetSwift Limited [2018] FCA 783). 6 In relation to each of the costs orders sought against Mr Webb, Mr Perera also seeks, in the alternative, that costs be paid by a third party, being Therium Capital Management Limited (TCM). 7 I will deal with each of these individual applications for costs separately below. B The Applications by the respondents B.1 Costs of the Multiplicity Hearing 8 The respondents refer to, and rely upon, the observations I made during the hearing on 13 April 2018 that the multiplicity dispute was to be at the cost of the applicants and that the respondents had been caught in "an internecine fight between applicants". In short, the respondents contend they should not be exposed to any costs of an inter se fight between those suing them, particularly given the finding that multiple proceedings occasioned vexation and oppression to the respondents. Given a permanent stay was granted, it was submitted that the usual rule that costs follow the event should be applied. 9 Before dealing with the merits of this argument, I pause to note that the reference in the respondent's submissions to what occurred before me is incomplete. On 29 March 2018, at the first case management hearing, I made it clear (T 14-5) that it was entirely a matter for the respondents as to whether they wished to take an active or passive role in the multiplicity dispute. I also noted to counsel then appearing for the respondents that they did not "need to establish that there is a degree of additional cost and vexation" occasioned to a respondent in having to face multiple open class proceedings rather than one open class proceeding. I considered that proposition to be an obvious one. 10 Although the Court obtained assistance from junior counsel for the respondents (who appeared on the multiplicity dispute) and granted the relief sought by the respondents (a permanent stay of two proceedings), it is unduly simplistic to say that costs should just follow the event. 11 Although it is often said, it is not strictly correct to state that there is a rule that costs follow the event. The principled approach is as was explained by Gleeson CJ, Gummow, Hayne and Crennan JJ in Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 at 62-63 that although there is "no absolute rule", one of the "general propositions" regarding an award of costs is that "the award is discretionary but generally that discretion is exercised in favour of the successful party": see also Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at 88-89 [40]-[41] per Gaudron and Gummow JJ. The discretion as to costs is a broad one which is relevantly unfettered, save for the requirement to act judicially and the requirement of s 37M(3) of the Federal Court of Australia Act 1976 (Cth) (Act) to ensure that any power to award costs is exercised in the way that best promotes the overarching purpose. 12 Leaving aside the fact that generally a discretion as to costs is exercised in favour of the 'successful' party, there are a number of additional factors presently relevant to the principled exercise of the discretion. 13 First, although the respondents' submission that they were 'successful' is true in a literal sense, irrespective of the position taken by the respondents, the problem that had arisen was one the Court felt it was necessary to deal with in the interests of group members; to protect the processes of the Court; and to further the overarching purpose. The course proposed was not one initially put in train by the respondents by the filing or foreshadowing of an interlocutory application prior to the first case management hearing. 14 Secondly, although the decision made to stay two proceedings was, to an extent, based upon the vexation and oppression occasioned to the respondents by the multiplicity of proceedings, as the principal judgment reveals, this was far from the only issue. 15 Thirdly, to the extent that the vexation or oppression of a respondent in dealing with the additional costs of multiple open class proceedings (when only one is necessary to vindicate group member claims) was an issue, as noted above, no evidence or submissions were required from the respondents to establish this obvious proposition. 16 Fourthly, this was a highly unusual case. It is important to recall that both Mr Perera and the McTaggart applicants commenced entirely licit representative proceedings which sought to vindicate the rights of group members. For reasons I have explained in detail, those proceedings became, in my view, abusive or, alternatively, the conduct of them should have been restrained, or they should have been declassed. This does not detract from the fact that the proceedings were commenced legitimately and only were required to be aborted because of multiplicity issues. Moreover, each of the applicants acted reasonably in advancing their claims as to carriage of the dispute. 17 It seems to me that, doing the best I can to do justice between all relevant participants, I should reserve the issue of costs of the multiplicity dispute. 18 In the event that Mr Webb is unsuccessful in the Webb Proceeding, then there is no reason why the respondents should not get all their costs associated with the multiplicity hearings in an order made against Mr Webb (who has taken on carriage of the claims of group members). 19 If, on the other hand, Mr Webb is successful, I do not presently see any reason why the respondents should have their costs of the multiplicity proceedings (although I would be prepared to hear from the parties at that time as to why, notwithstanding a loss on the principal issues, the respondents should be required to pay the reserved costs of the multiplicity dispute, which was not of their making). In any event, absent the likely result of an overall settlement, any argument as to costs of the multiplicity dispute can be determined on the basis of complete information following the result of the case being determined. B.2 Costs of the Intervention Application 20 The background to this costs application is that Mr Webb sought to intervene in both the Perera Proceeding and the McTaggart Proceeding to seek an extended interlocutory regime for the resolution of multiplicity issues, which included notification to group members. Despite the making of this application, I determined that the multiplicity issues should not be deferred and made directions which brought the Webb Proceeding before the Court at the time the multiplicity dispute between the Perera Proceeding and the McTaggart Proceeding had already been listed: see the principal judgment at [46]-[51]. Although Mr Webb did not obtain the substantive relief he sought as to deferring the process, he was given limited leave to appear at the case management hearing and the appearance prompted by the Intervention Application was necessary. There is no reason why there should be a separate costs order in relation to this interlocutory application. Complex litigation of this type is replete with interlocutory applications of one type or another: some made by formal interlocutory applications; others less formally by proposing draft orders or by oral motions ad hoc. It would be inconsistent with the overarching purpose to encourage the notion that parties should pour over and evaluate the results of case management hearings for the purposes of making costs applications as to relatively minor disputes. C Costs ApplicationS by Mr Perera C.1 Preliminary Observations and Conclusions on Power 21 At first glance it might be thought somewhat odd that Mr Perera seeks an order that the successful intervener (Mr Webb) and a non-party (TCM), pay Mr Perera's costs of his proceeding, which has now been ordered to be permanently stayed. 22 A variety of provisions of the Act and the Federal Court Rules 2011 (FCR) were called in aid by Mr Perera in his interlocutory application. Perhaps recognising difficulties in the application of some of these provisions, argument was significantly attenuated during the course of oral submissions. This is not so much a question of power, but the principled exercise of power in a novel factual situation. Having said that, there is, however, one substantive issue relating to power, but before coming to it, I will deal initially with the alternative relief sought against TCM. 23 TCM is not a party to the Perera Proceeding. Nor, as it happens, is it a funder of the Webb Proceeding. It has given no indemnity in respect of Mr Webb's costs and, as the common fund order in the Webb Proceeding will make plain, it is Therium Litigation Finance (Australia) Limited which is the funder of the Webb Proceeding (as was confirmed in a letter from that entity to Phi Finney McDonald (PFM) dated 11 April 2018 which is annexed to the affidavit of Mr Phi affirmed 12 April 2018 at Exhibit BJYP4, p 54) which was in evidence on the application. There is no basis for any award against TCM and, to the extent that such a contention is maintained, it is rejected. There was no amendment sought to the interlocutory application to seek relief against Therium Litigation Finance (Australia) Limited and, as these reasons will demonstrate, there would have been no basis for any relief being sought against that entity. Accordingly, the alternative relief sought by Mr Perera against TCM can be immediately put to one side. 24 Ultimately, during the course of oral submissions, the source of power for Mr Perera to seek an order for costs against Mr Webb in the Perera Proceeding was put on the basis of s 43(1) and s 33ZF of the Act (notwithstanding the other provisions referred to in the interlocutory application). The issue as to power arises because Mr Webb was, and is, a group member in the Perera Proceeding. As a result, s 43(1A) of the Act is relevant. The relevant parts of s 43 are extracted below: 43 Costs (1) The Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which this or any other Act provides that costs must not be awarded. This is subject to: (a) subsection (1A); … (1A) In a representative proceeding commenced under Part IVA or a proceeding of a representative character commenced under any other Act that authorises the commencement of a proceeding of that character, the Court or Judge may not award costs against a person on whose behalf the proceeding has been commenced (other than a party to the proceeding who is representing such a person) except as authorised by: (a) in the case of a representative proceeding commenced under Part IVA—section 33Q or 33R; or (b) in the case of a proceeding of a representative character commenced under another Act—any provision in that Act. 25 The short point made by Mr Webb is that notwithstanding he was an intervener in the Perera Proceeding, the wording of s 43(1A) does not permit the Court to make an order for costs against him, given his status as a group member in the Perera Proceeding. The otherwise general discretion as provided for in s 43(1) is expressly fettered and does not permit orders of the kind now sought against Mr Webb, being a person on whose behalf the Perera Proceeding was commenced. Only two exceptions are identified to the prohibition on awarding costs against group members, neither of which apply in the present circumstances. 26 Mr Perera submitted orally that in the context of a multiplicity dispute, the proceeding no longer had a representative character as the interests of Mr Webb (the group member) and Mr Perera (the representative) were diametrically opposed. This was not, in truth, a circumstance where the proceeding was being maintained on behalf of Mr Webb and, as a consequence, it had lost this character qua Mr Webb. It is notable in this regard that s 43(1A) is not restricted to Part IVA proceedings but is also directed to other proceedings of a "representative character". It follows, it was submitted, that the prohibition is not directed to circumstances where costs are sought against a person acting in a manner which is contrary to the interests being advanced by the representative party. 27 It seems to me that the better view is that the prohibition in s 43(1A) ("may not award") does apply. The words are clear, and the prohibition applies to any proceeding "under Part IVA or a proceeding of a representative character". It is not directed only to Part IVA proceedings which retain a representative character. The evident purpose is to capture all Part IVA proceedings and also Chancery style representative proceedings (see FCR, Div 9.2). It follows that the application made by Mr Perera fails for this reason alone. The specific text seems to me to be intractable and s 33ZF of the Act cannot, in these circumstances, be used as a 'gap filler'. Assuming I am wrong and there was power under either section, for reasons I will explain, I would not, in any event, be disposed to make the costs orders sought. C.2 Pre-Multiplicity Dispute Costs 28 Mr Perera contends that the costs he spent to the benefit of group members will now inure to the benefit of Mr Webb who is carrying on a representative proceeding on behalf of the same group members. It is said that there is no reason why those who will benefit ought not to take the burden of paying the costs from which they benefit. In this regard, it was said that the following matters were relevant: (a) the Perera Proceeding was properly commenced and hence all steps taken by Mr Perera (at least prior to the carriage dispute) must be taken as having been properly incurred to benefit group members; (b) in awarding carriage to Mr Webb, the Court made orders for the issue of a subpoena to obtain the share register of GetSwift (which order had been sought by an interlocutory application filed by Mr Perera in the Perera Proceeding prior to the first case management hearing); (c) while the Court found that PFM had a legitimate basis for delaying commencing what became the Webb Proceeding, the fact remains that the Webb Proceeding articulated a claim "substantially the same as the material allegations made in the amended statement of claim in the Perera Proceeding" (in other words, Mr Webb won carriage on the basis of a claim by him, on behalf of group members, which was "obviously parasitic" of Mr Perera's pleading, which was the product of costs expended by Mr Perera and, more specifically, the funder, International Litigation Partners No 18 Pte Ltd (ILP18)). 29 In these circumstances, it is submitted that there is no reason why Mr Perera should be visited with the burden of costs which have benefitted group members and, allied to this proposition, there is no reason why Mr Webb should have some form of windfall benefit. It is further asserted by Mr Perera that the result for which he contends is consistent with public policy. It would not only prevent a prospective representative party coming in late and "opportunistically" taking advantage of the work product of others, but it would also prevent such a party having a price advantage in any common fund proposal (because they have not had to spend costs in developing a claim and hence can afford to offer lower pricing). 30 The pejorative submissions made by Mr Perera about Mr Webb "opportunistically" lying in wait and "parasitically" taking advantage of the work product of others have been made and rejected previously: see the principal judgment at [60]. For reasons I have explained, this is not a fair characterisation of the conduct of Mr Webb. To the contrary, I accepted Mr Phi's evidence (see the principal judgment at [42] and [60]) as to why he did not commence proceedings earlier, which was primarily for the purpose of procuring what he considered was a more favourable outcome as to funding terms. Ultimately, on the basis of my analysis of the competing funding proposals (and not the subjective evidence of Mr Phi, which goes no higher than a statement of his opinion), those funding terms were the best of the three proposed. Irrespective of the merits of that conclusion, the reason for Mr Webb deferring the actual commencement of proceedings was an entirely legitimate one. 31 Allied to this is the point that there is simply no basis on the evidence to suggest that Mr Phi or others within PFM or Therium did not properly investigate the claim. I explained in the principal judgment (at [11]), the usual process of investigation of such claims by solicitors and funders and there is no reason to conclude otherwise than that this usual course was followed in the circumstances of the Webb Proceeding. It is a non sequitur to assert that Mr Webb did not investigate the claim thoroughly simply because he did not file a statement of claim as early as Mr Perera. 32 Additionally, the submissions of Mr Perera fail to have regard to what I stated in the principal judgment at [323], where I drew attention to a relevant consideration being a recognition that the funders of any stayed proceeding would be caused prejudice because of 'sunk costs' which would be unlikely to be recovered. The submissions of Mr Perera read as if Mr Perera was acting altruistically in incurring costs on behalf of group members. Although Mr Perera was acting consistently with the interests of group members, this was because those interests were congruent with the promoters of the Perera Proceeding who wished to make a return from the conduct of that proceeding. 33 The costs were incurred in pursuit of a commercial enterprise having the characteristics of a managed investment scheme. The costs incurred by both Mr Webb and the McTaggart applicants were, of course, costs incurred by a funder. These were costs incurred by the funders as a cost of doing business and, as it happens, a cost incurred in having their scheme considered as an appropriate vehicle for carriage of the group member claims. The fact that the commercial enterprise of Mr Perera, subject to the resolution of any application for leave and appeal, was not successful because of the factors referred to in the principal judgment, should be viewed as a cost of participating in the process. The significant limits on the analogy of competitive tenders have already been remarked upon, but certainly in a limited way, the position of the funders is not substantively different to the sunk costs incurred by tenderers to any type of commercial opportunity that has been successfully obtained by another bidder. This explains why my provisional view expressed in the principal judgment was that these funders' costs would be sunk costs that were unlikely to be recovered. I was aware that this occasions some prejudice to a funder, but this prejudice was expressly taken into account when considering the remedial response to the problem that confronted the Court. 34 Nothing about this result should encourage a prospective representative party coming in late and opportunistically taking advantage of the work product of others. If this occurred, this would be 'baked into the cake' of any principled multifactorial comparative analysis (including if it impacted upon the terms of any common fund proposal). This was not the case here on the facts. If a submission was to be put successfully that Mr Phi's conduct was opportunistic and parasitic and that he had done no preparatory work and hence obtained some sort of unfair, substantial 'springboard' this should, as a matter of fairness, have been put to him. 35 For completeness, the subpoena directed to obtaining the share register was an order made by the Court in order to facilitate the giving of notice to group members. Although the draft prepared in the Perera Proceeding provided a convenient precedent, it is far from a complex document and I do not accept that a special and unusual costs order should be made in relation to such a minor expense. It could have been drafted by an experienced legal secretary by populating a template document in five minutes. C.3 Costs of the Intervention Application 36 For the same reasons as declining the application of the respondents for their costs of Intervention Application, I would decline to make an order in favour of Mr Perera. C.4 Costs of the Multiplicity Dispute 37 My reasons for rejecting the notion that Mr Webb should pay all Mr Perera's costs of the multiplicity proceedings are similar to those rejecting the imposition of pre-multiplicity dispute costs. There is no justification for awarding an indemnity for the benefit of ILP18 for costs incurred in the pursuit of that commercial opportunity which, on this occasion, and subject to appellate intervention, was unsuccessful. 38 Moreover, in very large part, the costs which Mr Perera seeks to visit entirely upon Mr Webb would have been payable by Mr Perera's funder without Mr Webb's involvement. While the hearing of the carriage motion may have lasted somewhat longer than may otherwise have been the case before Mr Webb's intervention, this would be the difference between dealing with a "two-horse" rather than a "three-horse" race. Mr Webb cannot be singled out as the cause of all the work, as all three applicants bear this responsibility. In the context of the Perera Proceeding, Mr Webb is a non-party. Particular issues arise in respect of awarding costs against a non-party. As was observed by Lord Brown of Eaton-under-Heywood in delivering the advice of the Privy Council in Dymocks Franchise Systems (NSW) Pty Ltd v Todd [2004] UKPC 39; [2004] 1 WLR 2807 at 2813 [18]-[20], under the heading "Issue (ii): causation": The Board was referred to very little authority on this issue, merely dicta from Hamilton v Al Fayed (No 2) [2003] QB 1175 and Gore (t/a Clayton Utz) v Justice Corpn Pty Ltd (2002) 189 ALR 712 . In the Hamilton case [2003] QB 1175 , Simon Brown LJ noted at p 1198, para 54 that: "there is ample authority" and "no dispute" but that "proof of causation is a necessary precondition to the making of a section 51 order against a non-party" before concluding, as a further ground for rejecting the application made in that case for costs against non-party funders, that some at least of the contributions "plainly did not cause Mr Al Fayed to incur any costs which he would not otherwise have incurred". In the Gore case 189 ALR 712, 731, para 53, the Federal Court of Australia was clearly adopting the same approach when stating: "Justice Corpn had nothing to do with the decision to institute those proceedings and it had nothing to do with any subsequent decision (prior to 21 April 1999) to prosecute those proceedings. There is no basis upon which Clayton Utz could claim its costs against Justice Corpn in respect of that period. As his Honour said, there was no causal connection between those costs being incurred and the involvement in the case of Justice Corpn." Although the position may well be different when a number of non-parties act in concert, their Lordships are content to assume for the purposes of this application that a non-party could not ordinarily be made liable for costs if those costs would in any event have been incurred even without such non-party's involvement in the proceedings. On the facts of this case, however, their Lordships conclude that, but for Associated's involvement, the Todds would not have pursued their appeal to the Court of Appeal and thus occasioned the costs both in that court and on the further appeal to the Privy Council. (Uncorrected) 39 The mere incremental increase in length of the hearing does not appear to me to be a sound reason to award all costs against Mr Webb. C.4 Costs of the Restraint Application 40 The circumstances surrounding the injunction have been explained in my earlier judgment in the Webb Proceeding: Webb v GetSwift Limited [2018] FCA 783. The order that Mr Webb pressed by interlocutory application filed in Court on 25 May 2018 was as follows: Pursuant to s 33ZF of the [Act], the legal representatives and the litigation funder (and related entities of the applicant in [the Perera Proceeding]) be restrained from communicating with group members in [the Webb Proceeding] concerning any opt-out of that proceeding until such further order of the Court. 41 The complaint of Mr Perera is that this form of order "purported to prevent Mr Perera from communicating with his solicitors Squire Patton Boggs about opt out". It was said that this would "stymie" Mr Perera's ability to give instructions as to whether to seek leave to appeal from the principal judgment. This was apparently because opt out was mentioned in numerous places in the principal judgment and the proposed restraint contained no limitation to communications which were only in relation to the question of whether a group member should opt out of the Webb Proceeding. 42 Although there was some substance in the complaint as to the generality and form of the order sought (which was rectified in the form of order actually made), the core contention is that if Mr Webb put forward an appropriately framed request, rather than persisting in a broad restraint which had already been the subject of criticism from the Court, there would have been no need for an interlocutory hearing on 28 May 2018. 43 Although I unqualifiedly accept the implicit submission of Mr Edwards, as highly experienced and competent counsel, that in such a counterfactual his advice to Mr Perera would have been to consent to such an order, it is a little difficult to reconcile the notion that consent would have been readily forthcoming, given the actions that were taken after the principal judgment was delivered. Notwithstanding that I declined to deal with the first application for restraint in order to allow for instructions to be obtained from both sets of solicitors and funders, no sensible temporary arrangement was put in place by Squire Patton Boggs (SPB) and ILP18 (such as the arrangement that was agreed in a timely and cooperative way between Mr Webb, the McTaggart applicants, Corrs Chambers Westgarth and Vannin). Indeed, assuming that Mr Perera, SPB and ILP18 would have consented to a more narrowly framed temporary restraint (as they now have done), then it seems to me that this should have been communicated to the solicitors for Mr Webb. 44 What is evident, is that notwithstanding I indicated that a restraint order was very much a last resort, the position taken by at least Mr Perera and SPB was apparently inconsistent with agreeing to an immediate interim regime being put in place for a very short period so as to allow the argument concerning restraint to be argued fully (and hence avoiding the risk that the proposed restraint on non-Court approved communications would be rendered nugatory). As communicated by Mr Fraser of SPB on 25 and 28 May 2018, the procedural point was taken that neither SPB nor ILP18 were represented at the hearing on 23 May 2018, and that SPB considered that Mr Webb "should be required to file an application in relation to the proposed order so that both [SPB] and the litigation funder can be represented and be heard on the application before the order is made by the Court". After my Associate communicated an urgent listing, the further point was taken by Mr Fraser that "[SPB] do not understand that any application can proceed…in the absence of those documents being served on those entities", that is, SPB and ILP18: see Webb at [12]-[14]. This was consistent with Ms Banton of SPB noting at 10:18 am on 28 May 2018 to PFM, that if Mr Webb "wishes to restrain our firm and our client's (sic) funder the application would need to be properly constituted and served on the parties you are seeking injunctive relief against". To any recipient of this email, it would have been clear that no compromise would be proposed until at least SPB had been served and the funder had been served and apparently obtained independent legal advice. 45 In any event, in these circumstances, the re-listing of the matter to deal with the issue of restraint in open court was caused by the necessity to preserve the status quo and to allow for an application to be made on an ex parte basis against ILP18 and on an inter partes basis against Mr Perera and his servants and agents. Although there might be good reasons as to why SPB could not have appeared, or why instructions could not have been obtained from ILP18 earlier, or for SPB's and ILP18's inability to instruct a representative to appear on their respective behalves at the interlocutory hearing, they are not self-evident and no material has been put before the Court to this effect. 46 One would have thought that, consistently with the overarching purpose, it should have been possible for all these matters to have been sorted out (as was done speedily and with minimal fuss in relation to the McTaggart applicants and their funder and solicitors). Prima facie, it is difficult to understand why a sensible regime could not have been put in place until full argument could occur in relation to whether or not the restraint should continue during the entirety of the opt out process. In all the circumstances, it seems to me to be an appropriate exercise of discretion to reserve the costs of the interlocutory application for temporary restraint until the conclusion of full argument. At that time, I will make a determination as to who should pay the costs of the application for restraint on both an interim and final basis. I should note, subject to hearing any submissions, my preliminary view is that if argument is unnecessary and acceptable undertakings are eventually provided lasting until the end of the opt out process, then any relevant costs should be the costs of Mr Webb in the Webb Proceeding. D Conclusion & Orders 47 For reasons I have explained, I will reserve the costs of the multiplicity proceedings and of the interlocutory application filed in Court on 25 May 2018. I will dismiss the interlocutory application of Mr Perera filed 30 May 2018. Given the multiplicity of proceedings, orders will need to be made in each proceeding and hence I will ask those interested to confer, and for draft orders in each proceeding to be provided to my Associate (together with such other orders arising from the case management hearing in proceeding NSD 580 of 2018 to be held later today). I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee. Associate: Dated: 15 June 2018