ISGM CLASS ACTION UPDATE: MAY 2019
Robert Mutch vs ISG Management Pty Ltd
Full update available to download in the following languages:
Full details of the case management hearing as referenced in the May email update:
The parties appeared before Justice Bromberg in the Federal Court of Australia on 14 May 2019 for a case management hearing. See below for information on the matters discussed and the orders made at the case management hearing.
The various applications referred to in this update will be heard by the Court in early August 2019 or early October 2019, depending on the Court’s availability.
In addition to its defence, ISGM has brought a cross claim against both the lead applicant, Robert Mutch and the company of which he was a director. We believe ISGM’s cross claim has poor prospects of success and we will be applying to have the cross claim struck out.
In the cross claim, ISGM alleges that, if Mr Mutch is successful in his claim, ISGM ought to be entitled to be repaid the money that it paid out to the company that subcontracted with it.
ISGM allege that if Mr Mutch is successful and found to be an employee of ISGM, then both his company and Mr Mutch, personally, engaged in misleading and deceptive conduct, by signing a contract that explicitly defines the relationship of the parties as independent contractor and not employee/employer.
As at the date of the email update, the company the lead applicant was a director of, Mutch Better Communications Pty Lt (MBC), is deregistered.
ISGM has brought an application seeking orders to reinstate MBC so that they may prosecute its cross claim against it. The reinstatement application will likely be heard by Justice Bromberg at the same time as his Honour will hear our application to strike out the cross claim.
Common fund order
Since the March update, we have brought an application for a common fund order. A common fund order is an order for the funding terms that the lead applicant has entered into with the litigation funder to apply to the whole group.
We have been ordered to supply evidence in relation to the application for a common fund order. We believe that common fund orders in class action proceedings play an important part in protecting the interests of, and to ensure fairness for lead applicants and all group members. If the common fund order application is successful all group members will pay a portion of their recovery to Litigation Lending Services (LLS), who is funding the legal costs of the class action.
Declassing or Opt-in application
On 10 May 2019 ISGM brought an application seeking a ‘declassing’ order.
If ISGM is successful in its application the effect would be that the case would cease to run as a class action and each group member would need to bring a separate claim against ISGM. To make such an order, the court would need to be satisfied that there are insufficient common issues between the claims of group members to warrant the case proceeding as a class action.
We believe that ISGM’s ‘declassing’ application will be unsuccessful particularly having regard to the standardised system of work implemented by ISGM that is applicable to all subcontractors.
The parties have been ordered to supply evidence in relation to the declassing application and in relation to ISGM’s alternative application that the class action be conducted on an ‘opt-in’ basis.
If you have any queries or concerns about the information in this update or any aspect of this class action, please do not hesitate to contact us by calling either (02) 8754 7246 or 1800 316 471 or by emailing us at firstname.lastname@example.org.