Legal Project Management Plan & Checklist
Purpose of this Guide: Use this plan when two or more law firms have filed competing class actions against the same defendant in different Australian courts at the same time - for example, one firm in the Federal Court and another in the NSW Supreme Court. This situation, known as concurrent class actions, creates a race between firms to establish which proceeding should continue. This plan guides the lead plaintiff's solicitors through every step: choosing which court to file in, alerting both courts that competing proceedings exist, fighting for the right to run the case (called carriage), handling a defendant's attempt to transfer the proceedings to a different court (cross-vesting), and then running the class action through to trial once carriage is won. It also covers the situation where the defendant is a foreign company trying to use a clause in its standard contract to shut down the Australian class action entirely.
Jurisdiction: (National Practice Area: Class Actions) or (Common Law Division - Representative Proceedings List). Three forks cover specialist situations: Victorian Group Costs Orders and cross-vesting transfer resistance, foreign defendants using contractual clauses to stay proceedings, and carriage stalemates requiring a court-appointed referee.
This fork activates when an overlapping class action is filed in the Supreme Court of Victoria under a Group Costs Order (GCO) pursuant to s 33ZDA of the Supreme Court Act 1986 (Vic), and the defendant applies to transfer the Victorian proceeding to the NSW Supreme Court or Federal Court under s 1337H(2) of the Corporations Act 2001 (Cth) on the ground that NSW or Federal Court is the 'more appropriate forum'. Under Bogan v The Estate of Peter John Smedley (Deceased) [2025] HCA 7, the GCO does not travel with the transferred proceeding - the transferee court cannot make or enforce a GCO. The transfer would strip the plaintiffs of their percentage-based contingency fee funding, making the action financially unviable. This guide covers: confirming GCO status and funding dependency, preparing expert evidence on financial viability, drafting the opposing affidavit on the Bogan v Smedley GCO ground, and attending the transfer hearing.
This fork activates when a multinational defendant applies for a stay of Australian class action proceedings based on a class action waiver clause or an exclusive jurisdiction clause in a standard-form consumer contract. Under Karpik v Carnival Plc [2022] HCA 39, these clauses are void under ACL s 23 (unfair contract terms) where the respondent carries on business in Australia. This guide covers: identifying the stay application, proving the defendant carries on business in Australia (ACL s 5(1) extraterritorial trigger), establishing that the clause meets the three-part ACL s 23 unfair terms test, resisting the stay application at the interlocutory hearing, and securing the continuation of the Australian class action.
This fork activates when competing class action law firms present materially identical funding proposals, net return calculations, legal cost estimates, and solicitor experience, creating a carriage stalemate that cannot be resolved by the standard Wigmans multi-factorial analysis. Under Wigmans v AMP Ltd [2021] HCA 7, the court has broad discretion to appoint a special referee to audit competing proposals or an independent contradictor to represent ordinary group members' interests. This guide covers: identifying the stalemate, preparing materials for the referee or contradictor, cooperating with the inquiry process, attending the referee's report hearing, and executing post-determination steps.
The Process at a Glance: File in the chosen court with a precise class definition. Within 3 business days of serving the defendant, notify both the Federal Court and NSW Supreme Court registrars that competing proceedings exist and request a joint case management conference. Assess which court has the strongest connection to the claim. Challenge any clause in the defendant's standard contract that tries to block the class action. File a carriage motion supported by a financial comparison showing your proceeding will return the most money to class members. Once carriage is won, lock in the class membership by the opt-out deadline, exchange evidence, and run the trial on the common legal questions. Assess the lead plaintiff's damages and file written submissions within 14 days of trial.
Key Legislation and Case Law: The primary statutes are the Federal Court of Australia Act 1976 (Cth) Part IVA (Federal class actions), the Civil Procedure Act 2005 (NSW) Part 10 (NSW class actions), and the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW). For claims involving corporations, s 1337H of the Corporations Act 2001 (Cth) governs court transfers. Consumer protection claims rely on ss 18, 23, 60 and 61 of the Australian Consumer Law. Carriage disputes are decided by the multi-factorial test from Wigmans v AMP Ltd [2021] HCA 7, with net return to class members as the primary factor (formula: Expected Net Return = E(G) x (1 minus Funder Commission %) minus Estimated Legal Costs). Cross-vesting connecting factors come from BHP Billiton Ltd v Schultz (2004) 221 CLR 400. Foreign class action waiver clauses are void under ACL s 23 following Karpik v Carnival Plc [2022] HCA 39. Lead plaintiff damages apply the net offset formula D_net = max(0, D_Dillon minus R_ticket) from Baltic Shipping Co v Dillon (1993) 176 CLR 344. Victorian Group Costs Orders are governed by s 33ZDA of the Supreme Court Act 1986 (Vic) and do not survive a court transfer: Bogan v The Estate of Peter John Smedley (Deceased) [2025] HCA 7.
* Disclaimer: We're nobody's lawyer, because we aren't lawyers. You are, so you know better than to take legal advice from an app. We also aren't accountants or dog trainers - just digital spirit guides taking zero liability for any of this. This site exists to gather the collective knowledge of practitioners like you. Verify everything and submit your feedback on the Cross-Vesting, Carriage Disputes and Concurrent Class Actions (Lead Plaintiff) matter plan to improve the playbook. THIS IS NOT LEGAL ADVICE, it's a request for input.
This legal matter plan provides a structured workflow for LITIGATION cases, outlining the standard DISPUTE_LITIGATION process. Utilize these tracking templates to manage your legal cases efficiently.
The proceeding is formally on foot. All procedural steps to prevent duplication across registries are initiated within 3 business days of service. The cross-vesting strategy is identified.
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Verify all prerequisite documentation has been obtained, cross-reference against the statutory requirements for this matter type, and confirm compliance with practice direction protocols.
BHP Billiton Ltd v Schultz (2004) 221 CLR 400 (High Court): Confirmed the connecting factors relevant to cross-vesting analysis. The court identified: (1) the place where the cause of action arose, (2) the residence of the parties, (3) the law governing the dispute, and (4) the practicalities of conducting the proceedings. These factors are equally relevant under s 5 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) and s 1337H of the Corporations Act 2001 (Cth). A party seeking to resist a cross-vesting transfer should file in the registry that has the strongest connection to all four factors.
Prepare the relevant forms and supporting materials required under the applicable legislation, ensuring all mandatory fields are completed and all attachments are properly certified.
Draft and dispatch formal correspondence addressing the procedural requirements at this stage, including any required notices, requests for information, or proposals for resolution.
BHP Billiton Ltd v Schultz (2004) 221 CLR 400 (High Court): Confirmed that the cross-vesting discretion under s 5 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 is broad and not confined to a narrow 'clearly inappropriate forum' test. The court assesses the 'interests of justice' having regard to all relevant circumstances, with the four connecting factors being primary. The court warned against forum shopping where a party selects a registry not for any genuine connecting factor advantage but merely to secure a procedural or funding advantage.
Bogan v The Estate of Peter John Smedley (Deceased) [2025] HCA 7 (High Court): Confirmed that a Victorian Group Costs Order (GCO) under s 33ZDA Supreme Court Act 1986 (Vic) does NOT travel with a proceeding transferred out of the Victorian Supreme Court. The transferee court (e.g., the NSWSC or Federal Court) lacks the statutory power to make or enforce a GCO. This means that transferring a Victorian proceeding in which a GCO has been made would strip the plaintiffs of their funding mechanism and likely cause the action to collapse - a decisive factor against any cross-vesting transfer from Victoria.
The carriage dispute is resolved. Only one proceeding continues. All limitation period protections are preserved for the winning firm's class members.
Coordinate the collection and review of all financial documentation required for disclosure, including statements, valuations, and supporting schedules as mandated by the rules.
Conduct a thorough review of all filed materials to ensure compliance with court requirements, verify service obligations have been met, and prepare for the next procedural milestone.
Wigmans v AMP Ltd [2021] HCA 7 (High Court of Australia): The High Court definitively rejected any 'first-to-file' presumption in carriage disputes. Carriage is determined by a multi-factorial analysis with net return to group members as the primary (but not exclusive) criterion. The Court held that the proceeding offering the highest net hypothetical return to class members - after deduction of all funder commissions and legal costs - should generally prevail, but that other factors (solicitor experience, funding adequacy, class definition breadth, and litigation readiness) are relevant and may tip the balance where net returns are comparable. The net return formula Expected Net Return = E(G) x (1 minus Funder Commission %) minus Estimated Legal Costs must be calculated and exhibited in the carriage affidavit for every carriage dispute.
Assess the strategic considerations for interim applications, prepare supporting evidence, and draft the necessary documentation for urgent or time-sensitive relief sought.
Wigmans v AMP Ltd [2021] HCA 7: The High Court expressly declined to create a 'crude auction process' for carriage. Where net returns are identical, the court's broad discretion permits the appointment of additional investigative officers (special referees or independent contradictors) to gather more detailed information about the competing proposals before carriage is determined. These appointments are made under the court's inherent powers or under Federal Court Rule 28.70 (special referees) and have been used in several post-Wigmans carriage disputes where the competing proposals were closely matched.
All security and opt-out obligations are met. The class membership is fixed and the matter is ready for evidentiary development.
Verify all prerequisite documentation has been obtained, cross-reference against the statutory requirements for this matter type, and confirm compliance with practice direction protocols.
Prepare the relevant forms and supporting materials required under the applicable legislation, ensuring all mandatory fields are completed and all attachments are properly certified.
Draft and dispatch formal correspondence addressing the procedural requirements at this stage, including any required notices, requests for information, or proposals for resolution.
GetSwift multi-factorial analysis: In the competing GetSwift class action proceedings, the Federal Court applied the Wigmans multi-factorial approach and held carriage by reference to which proceeding had the lower overall costs burden on the class. The court noted that where net returns are mathematically identical, solicitor experience and the quality of the proposed litigation strategy become the deciding factors.