CONFIDENTIAL AND SUBJECT TO CLIENT LEGAL PRIVILEGE
Robert Mutch v ISG Management Pty Ltd
Case Management Hearing
A case management hearing was held on 19 March 2019 before Justice Bromberg in the Federal Court of Australia (Victorian Registry). This was the first time that the parties (Shine and ISGM) have appeared before the Court.
The purpose of a case management hearing is to narrow the issues in dispute between the parties and to set in motion a timetable for the progression of the case. At the case management hearing, Justice Bromberg made orders that ISGM file and serve its ‘defence’ and any cross claim by 23 April 2019. ISGM’s defence is a document that will reply to the claims raised in the statement of claim, being the allegation that group members who entered sub-contracting arrangements with ISGM were actually employees of ISGM.
Justice Bromberg also ordered that ISGM file and serve any application for an order that the case not continue as a ‘representative proceeding’ by 10 May 2019.
His Honour also ordered that the Applicant (Shine) apply for a common fund order by 26 March 2019, and serve any reply to ISGM’s defence by 7 May 2019. The matter is listed for a further case management hearing at 9.30AM on 14 May 2019.
We will communicate with you the moment an update is available. Please note that no action is required from your end at this stage.
Common fund order
The lead applicant, Robert Mutch, has entered into a litigation funding agreement with Litigation Lending Services (LLS) in which LLS has agreed to pay the legal costs and disbursements that Shine will incur to run the class action and meet any adverse costs order. In return, if the case is successful, LLS will be reimbursed and paid a ‘success fee’ from any settlement or judgment sum.
Shine intends to apply for a common fund order which is a court order that all group members pay a portion of their recovery to LLS as consideration or ‘reward’ for taking the risk of funding the class action. The amount to be received by LLS as a ‘success fee’ will need to be determined by the Court to be fair and reasonable. Under the proposed funding terms, this amount is deducted from the pool of settlement monies prior to its distribution to group members. A common fund order will ensure that it is not only group members that sign an agreement with LLS who contribute to the success fee, but all group members who benefit from LLS funding the proceeding.
Further details of the application for a common fund order will be communicated to you in due course.
ISGM has flagged its intention to apply for a “declassing” order. This is a normal defendant tactic in class actions of this kind. If the Court were to make such an order, 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 will communicate further details of the application once it has been received. Please note that no action is required from your end at this stage.
We have now held information sessions in almost every state and via webinar. Thank you to those who have taken the time to attend; it has been a privilege to meet with so many of you in person and learn more about your individual stories.
We encourage you to spread the word about this class action to your fellow workers and encourage them to register with us so that the case can gather as much support as possible. If you have any queries or concerns about the information in this bulletin 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 email at firstname.lastname@example.org.