FEDERAL COURT OF AUSTRALIA
King v GIO Australia Holdings Ltd [2000] FCA 617
PRACTICE AND PROCEDURE – representative proceeding – Federal Court of Australia Act 1976 (Cth) (“FCA Act”) Pt IVA – representative proceeding brought by GIO shareholder against GIO, adviser to GIO, and directors of GIO relating to advice given to reject AMP takeover offer – respondents’ application for orders that proceeding be struck out or no longer continue as representative proceeding – whether group members have “claims against the same person” as required by s 33C(1)(a) of FCA Act – whether the claims of all the group members “give rise to a subtantial common issue of law or fact” as required by s 33C(1)(c) – meaning of the word “claim” in s 33C(1) – identification of group
WORDS AND PHRASES – “claim”
Federal Court of Australia Act 1976 (Cth) Pt IVA, ss 33C, 33ZB
Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 169 ALR 616 referred to
Philip Morris (Australia) Ltd v Nixon [2000] FCA 229 considered
Finance Sector Union of Australia v Commonwealth Bank of Australia (1999) 94 FCR 179 considered
Femcare Ltd v Bright [2000] FCA 512 referred to
Nixon v Philip Morris (Australia) Ltd (1999) 165 ALR 515 considered
Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398 referred to
Wong v Silkfield Pty Ltd (1999) 165 ALR 373 considered
Law Reform Commission, Grouped Proceedings in the Federal Court, Report No. 46, 1988
SHANE ROBERT KING v GIO AUSTRALIA HOLDINGS LTD (ACN 054 573 401), GRANT SAMUEL & ASSOCIATES PTY LTD (ACN 050 036 372), DAVID MORTIMER, BRUCE HOGAN, STEWART STEFFEY, RONALD ASHTON, MARINA DARLING, ANDREW KALDOR, LLOYD LANCE, DAVID O’HALLORAN AND IAN POLLARD
N 955 OF 1999
MOORE J
12 MAY 2000
SYDNEY
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IN THE FEDERAL COURT OF AUSTRALIA |
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N 955 OF 1999 |
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BETWEEN: |
SHANE ROBERT KING APPLICANT
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AND: |
GIO AUSTRALIA HOLDINGS LTD (ACN 054 573 401) FIRST RESPONDENT
GRANT SAMUEL & ASSOCIATES PTY LTD (ACN 050 036 372) SECOND RESPONDENT
DAVID MORTIMER THIRD RESPONDENT
BRUCE HOGAN FOURTH RESPONDENT
STEWART STEFFEY FIFTH RESPONDENT
RONALD ASHTON SIXTH RESPONDENT
MARINA DARLING SEVENTH RESPONDENT
ANDREW KALDOR EIGHTH RESPONDENT
LLOYD LANCE NINTH RESPONDENT
DAVID O’HALLORAN TENTH RESPONDENT
IAN POLLARD ELEVENTH RESPONDENT
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT ORDERS THAT:
1. The notices of motion filed on 5 April 2000 by the first respondent, the second respondent, the third, sixth, eighth, ninth, tenth and eleventh respondents, the fourth and seventh respondents and the fifth respondent are dismissed save to the extent that orders are sought concerning s 1318 of the Corporations Law.
2. The respondents pay the applicant’s costs of the notices of motion.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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N 955 OF 1999 |
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BETWEEN: |
APPLICANT
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AND: |
(ACN 054 573 401) FIRST RESPONDENT
GRANT SAMUEL & ASSOCIATES PTY LTD (ACN 050 036 372) SECOND RESPONDENT
DAVID MORTIMER THIRD RESPONDENT
BRUCE HOGAN FOURTH RESPONDENT
STEWART STEFFEY FIFTH RESPONDENT
RONALD ASHTON SIXTH RESPONDENT
MARINA DARLING SEVENTH RESPONDENT
ANDREW KALDOR EIGHTH RESPONDENT
LLOYD LANCE NINTH RESPONDENT
DAVID O’HALLORAN TENTH RESPONDENT
IAN POLLARD ELEVENTH RESPONDENT
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JUDGE: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
1 On 31 August 1999 a proceeding wascommenced as a representative proceeding under Pt IVA of the Federal Court of Australia Act 1976 (Cth) (“FCA Act”) by Mr Shane King (“the applicant”) on his own behalf and on behalf of certain shareholders in GIO Australia Holdings Ltd (“GIO”) which are said to form a group for the purposes of that Part. The proceeding is against GIO, an adviser to GIO, Grant Samuel and Associates Pty Ltd (“Grant Samuel”), and nine directors of GIO. The proceeding concerns a period in the history of GIO when it was the subject of a takeover offer by AMP Insurance Investment Holdings Pty Ltd (“AMP”) and relates to advice given to shareholders of GIO about whether the offer should be accepted.
The principal application
2 The representative proceeding was commenced by application and statement of claim. There have been several directions hearings in the latter part of 1999 and early 2000 at which issues have been raised by the respondents about the adequacy of the statement of claim, the adequacy of particulars provided to the respondents and the identification of the group on whose behalf the proceeding is brought. Most of these matters have been resolved, in the main, by agreement between the parties at least for the moment. However each respondent has now raised more fundamental issues concerning the application and each did so by a motion filed in early April 2000. While the way in which the issues have been articulated by the respondents varies, they concern whether the proceeding, as presently framed, can be brought as a representative proceeding under Pt IVA.
3 Before considering the issues raised by these motions it is necessary to say something about the case as presently formulated by the applicant. Some of what follows by way of narrative assumes assertions of fact made by the applicant are correct though nothing now turns on whether they are. Where appropriate, I will not distinguish between the applicant and members of the representative group and references to the group will often comprehend the applicant as well.
4 In August 1998 AMP announced a $4.75 cash offer for GIO shares with an alternative offer of two AMP shares for nine GIO shares. The directors of GIO recommended that the offer be rejected. The offer was embodied in a Part A statement dispatched on 4 December 1998 though a revision of the offer was announced on 9 December 1998 which was an offer of $5.35 per GIO share or one AMP share for four GIO shares. A media release of 9 December 1998 quoted the Chief Executive Officer of GIO, Mr Steffey (the fifth respondent) as continuing to urge shareholders to reject AMP’s “inadequate bid”. That day the board of GIO had resolved unanimously to reject the revised offer and had authorised the chairman of the Board, Mr David Mortimer (the third respondent) and Mr Steffey to sign the Part B statement made under s 647 and Part B of s 750 of the then Corporations Law. The Part B statement issued that day (though there is material suggesting it was not released until later in December 1998) and took the form, in substance, of two booklets. The second booklet was a report of Grant Samuel valuing GIO shares in the range $5.66 to $6.71.
5 A summary prepared by the applicant at my direction contains the following description of the case he propounds (though edited in minor respects):
“The clear and dominant message of the Part B statement was: “The AMP bid is inadequate; it is below the value of GIO shares; it should be rejected”. This dominant message is apparent on a cursory reading of the Part B statement. Its dominance is ensured by the following:
a. the chairman’s letter to shareholders which accompanied the Part B and which expressly advises shareholders to reject the bid;
b. the advice “Reject AMP’s inadequate bid” is printed in large, bold type on the cover of the Part B;
c. the reasons why the bid should be rejected are set out in large, bold type on page 1 of the Part B;
d. the first 24 pages of the Part B set out prominently and in relatively straight-forward language the various reasons for rejecting the bid. The presentation of the first 24 pages of the Part B is such as to give prominence to the perceived inadequacy of the bid.
The balance of the first booklet of the Part B is statutory information, and a 9-page appendix which contains a financial forecast of GIO for 1999. The second booklet of the Part B is Grant Samuel’s report, which is 175 pages of detailed accounting analysis, plus appendices. In the 1999 forecast (booklet one) and in the Grant Samuel report (booklet two) there is reference to various risk factors associated with the reinsurance business conducted by GIO. Those risk factors are given no prominence, and the material is presented in such a way that a reader without special expertise in the insurance industry would not know that it was of special importance.
In fact, the business of GIO was critically dependent on GIO Re [the reinsurance business of GIO]. GIO Re’s business was critically dependent on various risk factors. However, the circumstances were such that, if various of the risks materialized, the effect on GIO Re would be catastrophic; and the consequences for the GIO share price would be catastrophic, because of the relative significance of GIO Re in the business of GIO. Accordingly, given the financial structure and size of GIO Re, the risk factors meant that the GIO share price was capable of being profoundly, and rapidly, affected by foreseeable contingencies of the reinsurance business. In consequence, the GIO shares were an inherently risky investment, the value of which could fall dramatically and swiftly.
Soon after the close of the bid, GIO Re posted increasing losses and revised provisions for losses, with the result that the share price of GIO fell to about $2.50 per share. A scheme of arrangement has since been approved which involved AMP acquiring all shares in GIO not yet owned by it for a consideration amounting to $2.75 per share.
99% of GIO shareholders were small shareholders, with fewer than 5000 shares, as appears from page 1 of the Part B. They relied on the directors for balanced advice about the bid. Balanced advice required three things:
a. a clear and prominent warning that the value of the GIO shares could fall dramatically;
b. a valuation of GIO shares which, by its range of possible values, clearly reflected the true risk associated with GIO shares;
c. a clear and prominent warning that shareholders should, when deciding whether or not to accept the offer, take into account the real possibility that the value of GIO shares could fall dramatically if one or more of the risks materialized.
Grant Samuel, the directors and the company all represented the GIO shares as having a value which, on any reasonable view of the foreseeable future, was greater than the offer price. They valued the shares at between $5.66 and $6.71. Because of the inherent instability of the value of GIO shares, that was false. The lowest value in the range of values attributed to the shares should have been considerably lower than $5.66 to take account of the risk factors.
The Applicant and the group members relied on the Respondents to give them accurate and balanced advice. They accepted and relied on the very clear advice given, and thereby lost the opportunity to sell their shares for $5.35 each. The scheme of arrangement means that their loss per share has crystallized.”
6 It is against this background that the applicant has sought to articulate in the application and statement of claim the legal framework in which the representative proceeding is brought. The orders sought in the application commence with the following order:
“On the grounds set out in the Statement of Claim the Applicant claims for himself and the group members –
(a) a declaration that GIO has contravened s.52 of the Trade Practices Act 1974, (or alternatively s.12DA of the Australian Securities and Investments Commission Act) s.42 of the Fair Trading Act 1987 and s.995 of the Corporations Law;”
7 A similar declaratory order is sought in relation to Grant Samuel and also the directors. The application for declarations that conduct contravened s 52 of the Trade Practices Act 1974 (Cth) (“the TP Act”)is brought under s 163A of that Act. There is probably now limited scope to argue that a person cannot apply for such a declaration as a discrete proceeding having regard to the recent judgment of the High Court in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 169 ALR 616 (but see Gaudron J at par 52 and Kirby J at par 140) even though the High Court’s immediate concern was with standing. It should be noted that s 6(3) of the TP Act is relied on by the applicant as extending the operation of that Act to the individuals who are the directors. It was not submitted by the respondents that this aspect of the pleaded case had any particular relevance to these interlocutory applications. An order is sought under s 82 of the TP Actthat GIO, Grant Samuel and the directors pay damages and damages are sought against the respondents on the basis of alleged negligence. Other orders are also sought.
8 The statement of claim identifies the representative group in the following way:
“The Group Members
6. The group members to whom this proceeding relates (“the group members”) are all persons who owned shares in GIO continuously between 25 August 1998 and 4 January 1999 (“the relevant period”) and who did not accept the takeover offers for those shares made by AMP Insurance Investment Holdings Pty Ltd (“AMP”) on 25 August 1998 (and varied on 9 December 1998) by reason of the conduct alleged in this Second Further Amended Statement of Claim of all or any of the Respondents and who suffered loss as a consequence, but the group members do not include:
(a) Grant Samuel or any body corporate related to GIO or Grant Samuel (within the meaning of s.50 of the Corporations Law);
(b) any related entity of GIO or Grant Samuel (within the meaning of s.9 of the Corporations Law);
(c) any proprietary company of which any of the Directors is a director or shareholder, or the beneficiary of any trust of which any such Director or corporation is the trustee; and
(d) AMP Ltd and any related body corporate of AMP Ltd (within the meaning of s.50 of the Corporations Law) or any director thereof.”
(emphasis added)
9 The reference to the conduct of “all or any of the Respondents” was said by at least some of the respondents to be of some significance. The application identifies the common questions of fact and law arising in the proceedings as:
”(a) Were the representations made by the Respondents or any of them during the currency of and in connection with the takeover offers misleading or deceptive or likely to mislead or deceive in breach of the Trade Practices Act (or alternatively the Australian Securities and Investments Commission Act), the Fair Trading Act or the Corporations Law?
(b) Were any of the Respondents negligent or otherwise in breach of any duty in making the representations alleged in the Statement of Claim during the currency of and in connection with the takeover offers?
(c) Did the Applicant and the group members rely upon the representations made by the Respondents?
(d) Did the Applicant and the group members suffer loss by reason of the Respondents’ breaches of duty or breaches of the Trade Practices Act (or alternatively the Australian Securities and Investments Commission Act), Fair Trading Act or Corporations Law as alleged in the Statement of Claim?
(e) Were any of the Respondents involved in the contraventions of the Trade Practices Act, (or alternatively the Australian Securities and Investments Commission Act), the Fair Trading Act or Corporations Law by any of the other Respondents?”
10 The pleadings contain, in summary, the following contentions about the conduct of the respondents:
(i) That GIO and the directors and Grant Samuel engaged in misleading and deceptive conduct by impliedly representing that the Part B statement was accurate, balanced and reasonable and contained all material matters to be taken into account when deciding whether to accept or reject the varied takeover offer.
(ii) That GIO and the directors and Grant Samuel engaged in misleadingand deceptive conduct as to a future matter by impliedly representing that the valuation of GIO shares contained in the Part B statement was accurate and reliable and that the profit forecast for GIO for the financial year ending 30 June 1999 contained in the Part B statement was accurate and reliable.
(iii) Each of the respondents engaged in misleading and deceptive conduct by failing to inform the members of the group adequately or at all about the risk factors in circumstances where it was appropriate to inform them as each owed a duty to the members to exercise reasonable skill, care and diligence.
(iv) GIO, each director and Grant Samuel each breached a duty of care owed to the applicant and each group member by failing to give adequate advice, failing to ensure that the Part B statement was not misleading or deceptive, failing to ensure that the Part B statement was balanced by appropriate discussion of the risk factors and failing to inform the applicant and the group members of the existence and materiality of the risk factors.
(v) GIO, Grant Samuel and each director engaged in conduct in contravention of s 52 (though depending on the meaning of financial services in s 12BA of the Australian Securities and Investments Commission Act 1989 (Cth) (“ASIC Act”), contravention of s 12DA of that Act and s 42 of the Fair Trading Act 1987 (NSW) (“FT Act”)) by publishing the Part B statement, making the representations earlier referred to and failing to inform adequately or at all about the risk factors and, as to Grant Samuel, publishing its report, and, as to each of the directors, causing the Part B statement to be sent to the applicant and group members.
(vi) Grant Samuel was by operation of s 75B of the TP Act, s 79 of the Corporations Lawand s 61 of the FT Act involved in the relevant contraventions by GIO by aiding, abetting, counselling or procuring those contraventions, inducing those contraventions or by being directly or indirectly knowingly concerned in or party to them.
(vii) Each of the directors was likewise involved in an accessorial role in the GIO contraventions.
(viii) Each of the directors, Grant Samuel and GIO breached s 995 (2) of the Corporations Law.
This conduct is alleged to have caused or led to loss or damage. For reasons which, I trust, become clear, it is unnecessary to descend into any greater detail about the pleaded case though the structure of the statement of claim has not been overlooked and, in particular, the way the pleadings create several trails leading to the alleged conduct creating the liability of the various respondents or sets of respondents has not been overlooked.
Issues in the notices of motion
11 In order to describe the issues raised in the various notices of motion it is desirable to set out s 33C of the FCA Act:
“33C (1) Subject to this Part, where:
(a) 7 or more persons have claims against the same person; and
(b) the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances; and
(c) the claims of all those persons give rise to a substantial common issue of law or fact;
a proceeding may be commenced by one or more of those persons as representing some or all of them.
(2) A representative proceeding may be commenced:
(a) whether or not the relief sought:
(i) is, or includes, equitable relief; or
(ii) consists of, or includes, damages; or
(iii) includes claims for damages that would require individual assessment; or
(iv) is the same for each person represented; and
(b) whether or not the proceeding:
(i) is concerned with separate contracts or transactions between the respondent in the proceeding and individual group members; or
(ii) involves separate acts or omissions of the respondent done or omitted to be done in relation to individual group members.”
12 This provision is central to the operation of Pt IVA and creates a threshold requirement to be satisfied for the maintenance of a proceeding under that Part: see Wong v Silkfield Pty Ltd (1999) 165 ALR 373 at 381.
13 The issues raised by the various notices of motion may be described this way. The first was whether the threshold requirement in s 33C(1)(a) was satisfied and this issue centred on the scope of Pt IVA when a proceeding was brought against several respondents. It was not in issue in this proceeding that a claim could be made against a number of named respondents under Pt IVA. However there was a limited divergence of approach between the respondents about the class of case in which this could occur depending, as I apprehended the submissions, whether it was accepted the reach of Pt IVA extended beyond a case where the respondents were jointly liable in the one cause of action as, for example, might be the members of a partnership. But this divergence is of no consequence given the conclusion I have reached about the contentions that appear to unite all respondents. That is, that for a proceeding to be brought under Pt IVA against a number of respondents, all group members must have a claim against each respondent and, as put by some respondents, the claim against each respondent must be the same claim or, perhaps as an alternative, that in this proceeding there was not a claim by all group members against each respondent. In describing the issue this way it must be accepted that the answer may depend on what is meant by “claim” both in the description and s 33C which is a matter I return to later.
14 The second issue raised in the notices of motion was whether the threshold requirement of s 33C(1)(c) was also satisfied.
Consideration of the issues
15 The centrepiece of the submissions of the respondents on the first issue is the recent judgment of the Full Court in Philip Morris (Australia) Ltd v Nixon [2000] FCA 229. The reasons of the members of the Full Court can, for present purposes, be approached at two levels. The first is what was required, in the abstract, to enable a proceeding to be commenced as a representative proceeding under Pt IVA. The second is what were perceived to be the deficiencies in the case pleaded by the applicants in that matter which led to a conclusion the proceeding (as then framed (per Sackville J) or at all (per Spender and Hill JJ)) could not be brought as a representative proceeding under that Part.
16 It is convenient to start with the leading judgment of Sackville J with whose reasons, with one qualification, both Spender and Hill JJ agreed. After referring briefly to the history of the proceeding and outlining the legislative scheme, Sackville J analysed, in some detail, the pleadings. It would be unproductive for me to endeavour to summarise or paraphrase that analysis and equally unproductive to repeat it by quoting it. It is sufficient to note that the claim or claims were by those suffering the alleged ill effects of smoking and were made against Australian manufacturers and distributors of cigarettes. The claims were cast in terms that would justify a conclusion that the allegation was that the ill effects suffered by any given member of the group was caused by smoking cigarettes manufactured or distributed by any one or more of the respondents: see par 61 of the judgment of Sackville J.
17 His Honour then discussed the way in which the issue of whether the proceeding could be brought under Pt IVA had been approached by the primary judge. Significantly, for present purposes, reference was made to the approach of the primary judge to the requirements of s 33C(1)(a). The primary judge had referred to one of his earlier judgments on this question, Symington v Hoechst Schering Agrevo Pty Ltd (1997) 78 FCR 164, in which he had held that each group member must have a claim against each respondent. Sackville J’s summary of the primary judge’s reasons continued and reference was made to a submission made to the primary judge by one respondent that s 33C(1)(a) had not been complied with because some applicants may not have had claims against some of the respondents by reason of the fact that they did not smoke the cigarettes of that respondent or the respondent did not manufacture or distribute the cigarettes smoked: see par 89. Sackville J then set out the reasons of the primary judge for rejecting this submission. Those reasons, somewhat simplified, were that the claim of the applicants was founded on an allegation of collective conduct of all three respondents designed to create a false community perception about the risks associated with cigarette smoking.
18 After discussing several other aspects of the primary judge’s reasons, Sackville J referred to the rejection by the primary judge of a contention that the represented group had been impermissibly defined by reference to subjective criteria. This is a matter I return to later in these reasons.
19 After briefly referring to the submissions made in the application for leave to appeal, Sackville J discussed the procedures involved in representative proceedings and referred first to what, concerning those procedures, was common ground between the parties before the Full Court. One issue not in dispute was described by his Honour at par 108:
“Secondly, Senior Counsel for the applicants expressly accepted that in order to satisfy par (a) of what the High Court has described as the “threshold requirements” imposed by s 33C(1) of the Federal Court Act (Wong v Silkfield, at 381, per curiam), it was necessary that the applicants’ pleading allege facts that establish that they and every member of the represented class have a claim against every respondent. For their part, the respondents accepted that the expression “the same person” in s 33C(1)(a) is to be read as including more than one person (see Acts Intepretation Act 1901 (Cth), s 23(b)), provided that all applicants and members of the represented class make claims against all respondents to the proceedings.”
20 Sackville J then noted that the parties did not explore further the relationship between the procedural requirements of Pt IVA and the general principles governing pleadings in the Federal Court because, perhaps, of the common ground including the matter referred to in the preceding paragraph. However his Honour did explore that relationship and, in particular, did so by reference to the report of the Law Reform Commission (“LRC”), Grouped Proceedings in the Federal Court, Report No. 46, 1988. As to the view of the LRC concerning relief against the same respondent accepted to be reflected in s 33C(1)(a), his Honour said at par 113:
“The LRC’s recommendations were specifically designed to provide an effective procedure to enable people suffering loss or damage in common with others as a result of a wrongful act or omission by the same respondent (par 69, 95, 133). It therefore plainly did not envisage that the grouped procedure could be employed to bring a proceeding against more than one respondent, in circumstances where some members of the group make a claim against one respondent only and others make a claim against another respondent.”
21 After surveying other LCR recommendations and discussing the extent to which they had been reflected in Pt IVA, Sackville J summarised the procedural requirements imposed by that Part. Of critical importance in the present proceeding is the third requirement described by his Honour in the following passage (pars 126 and 127):
“Thirdly, as the parties accepted, s 33C(1)(a) requires every applicant and represented party to have a claim against the one respondent or, if there is more than one, against all respondents. This conclusion follows from the language of s 33C(1)(a) itself and is consistent with the approach taken by the LRC in Grouped Proceedings. It is also consistent with the structure of the legislation. For example, s 33D(1)(a) (which provides that a person who has a sufficient interest to commence a proceeding on his or her own behalf against another person has a sufficient interest to commence a representative proceeding against that person on behalf of the other persons referred to in s 33C(1)(a)) is clearly drafted on the assumption that all applicants and represented persons will have claims against the same person.
It follows that s 33C(1)(a) is not satisfied if some applicants and group members have claims against one respondent (or group of respondents) while other applicants and group members have claims against another respondent (or group of respondents). The requirement in s 33C(1)(b), that the claims of all group members are in respect of or arise out of the same, similar or related circumstances, is a necessary but not sufficient condition for the commencement of representative proceedings. Of course, if there are two sets of claims against two sets of respondents, it may well be that each can be the subject of representative proceedings. It may even be that directions can be made for them to be heard together: Ryan v Great Lakes Council (1997) 149 ALR 45, at 48, per Wilcox J. But they cannot both be the subject of the same representative proceedings.”
22 I should, at this point, make the following observation. It was suggested in this matter that this passage should be read as if the reference to “against all respondents” in the first sentence is a reference to each and every respondent in the sense that every group member has a common claim against each and every respondent. However Sackville J appears to be doing no more than repeating and adopting what he had earlier identified as common ground. That is, the concession of senior counsel for the applicants recorded in par 19 above that the applicants and every group member have a claim against every respondent.
23 His Honour went on to observe that satisfaction of s 33C(1) is to be ascertained by reference to the pleadings and, relevantly for present purposes, said (see par 128):
“… the pleading must make claims on behalf of the applicant and each member of the represented class against the same respondent or, if more than one, against all respondents. It is not permissible in a representative proceeding to plead a claim on behalf of some group members against one respondent and a separate claim on behalf of other group members against another respondent.”
24 I think it is important to observe that it is clear that in using the word “separate claim” his Honour was not treating the word “claim” as having some narrow meaning such as a particular cause of action, but was giving it a broad meaning and was using the adjective “separate” to highlight that the claim was by other people against another person.
25 Sackville J then discussed how pleadings might be framed in representative proceedings and the extent to which a liberal view might be taken about their contents. In the course of doing so his Honour said (at par 136):
“Whether proceedings at a relatively high level of generality are permissible will depend on the circumstances of the particular case and the stage it has reached. The facts material to the claims of each member of the represented group might not be necessary to ensure that the respondent adequately understands the case made on behalf of the represented class and has a fair opportunity to meet that case. This may be the position, for example, where representative proceedings are brought in order to provide a mechanism to enable one or more common issues of law or fact to be resolved in a manner that binds the respondent and all class members, rather than to determine finally the claims of each class member. (See Federal Court Act, ss 33Q, 33R.)”
26 Having discussed in these general terms the provisions of Pt IVA, Sackville J embarked on an analysis of the pleaded case in that proceeding. His Honour rejected the contention, accepted by the primary judge, that the case involved an allegation of collective conduct on the part of all three respondents (see particularly pars 141-143). Sackville J concluded the flaws in the pleadings he had identified had certain consequences. The first concerned the requirement in s 33C(1)(a). That consequence was identified by his Honour in the following passage which the respondents particularly rely on in this matter (pars 155 and 156):
“The first consequence of these flaws is that, in my opinion, the statement of claim does not establish that the requirements of s 33C(1)(a) of the Federal Court Act have been met. As I have explained, the applicants do not plead a case based on the collective conduct of all three respondents. What is alleged, in essence, is that each of the respondents, over a period of twenty-five years or more, engaged separately in misleading or deceptive conduct. Each group member is said to have been influenced to smoke, continue smoking or fail to quit smoking by the conduct of one or other of the respondents. This does not constitute the pleading of a claim by all applicants and group members against all respondents, as s 33C(1)(a) requires. Rather, the statement of claim pleads that some applicants and group members have claims against one respondent, while others have claims against the other individual respondents. The statement of claim also alleges negligence on the part of the respondents over a period of some forty years.
It perhaps might be possible to plead a case that every member of a represented class was influenced to commence or continue smoking by the separate conduct of all three respondents and, for that reason, has a claim against all three respondents. Such a case may well encounter formidable factual difficulties, since the circumstances of each group member will vary greatly and it might be thought unlikely that every one of them was influenced to begin or continue smoking by the conduct of each of the three respondents. For present purposes, however, the question is whether the statement of claim actually pleads a case of this kind.”
27 His Honour went on to elaborate on why, in substance, collective conduct had not been alleged and why, additionally, the statement of claim failed to establish that the claims of group members were “in respect of, or arise out of, the same, similar or related circumstances” as required by s 33C(1)(b). His Honour also doubted that the proceeding involved common questions of law or fact though did not express a concluded view on that question.
28 Sackville J then explained why he would have given leave to replead, an approach not adopted by Spender and Hill JJ who, as the majority, declared that it was inappropriatethe claims of the applicants be pursued by means of a representative proceeding and ordered the proceedings not continue under Pt IVA.
29 In my opinion, the decision of the Court in Philip Morris (Australia) Ltd v Nixon (supra) does not establish, for present purposes, more than that a proceeding may be brought as a representative proceeding against a number of respondents under Pt IVA if, and only if, each applicant and every member of the representative group has a claim against each respondent. It does not establish that what constitutes a claim is to be viewed narrowly and that applicants and group members must, on that basis, have the same claim against all respondents. However plainly, as Sackville J discussed, the claims must have sufficient in common to satisfy the requirements of both pars (b) and (c) of s 33C(1).
30 There is a clear requirement in s 33(1)(a) that the group members must have, if there is one respondent, a claim against that respondent. That is, each member must have a claim against that respondent. However it is equally clear that the claim, for the purposes of s 33C(1)(a), need not result in the same relief: s 33C(2)(a)(iv), need not be based on the same conduct of the respondent: s 33C(2)(b)(ii) and may arise out of different transactions with the respondent: s 33C(2)(b)(i). What the claims must have as unifying characteristics to permit their prosecution under Pt IVA is that they are founded in the same, similar or related circumstances: s 33C(1)(b) and give rise to a substantial common issue. The common issue can be either of fact or law: s 33C(1)(c).
31 These features of Pt IVA support the conclusion that claims which are not precisely the same can be made under that Part against several respondents (as long as all applicants and group members have a claim against each respondent). It is also a conclusion consistent with the LRC’s report. An example was given in the report (par 65) of the type of situation to which the form of litigation proposed by the LRC was directed:
“Actions by shareholders in respect of misleading conduct. A group of small shareholders suffer considerable financial loss as a result of misleading advice received from stockbrokers and the directors of the company in which significant amounts of their savings were invested. The shareholders also claim that the company failed to comply with the Australian Stock Exchange listing rules by neglecting to inform the market of factors likely to materially affect the market price of shares. Apart from rights in negligence against the stockbrokers, the shareholders would have had rights against the directors arising from the Companies Codes and the Securities Industry Codes. A grouping procedure could facilitate the recovery of loss by those affected and would offer the advantage of helping to ensure that all concerned were informed of the claim and shared in the result without having to commence individual proceedings.”
32 This example contemplates claims, as to their legal foundation, of a different character against the directors on the one hand (rights arising under the then Companies Codes and Securities Industry Codes) and the stockbroker on the other (negligence). I acknowledge, however, that the proposal of the LRC for grouped proceedings was not adopted by Parliament: see the remarks of the Attorney-General quoted by Lindgren J in Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd (1998) 84 FCR 512 at 521, and comments of the type made by the LRC just quoted must be approached with that in mind.
33 What is meant by “claim” and the need for an identity of causes of action amongst group members (and applicants) was considered by a Full Court in Finance Sector Union of Australia v Commonwealth Bank of Australia (1999) 94 FCR 179. One issue considered by the Full Court was whether a claim for a penalty under the Workplace Relations Act 1996 (Cth) could be brought in the same representative proceeding and another was whether a representative proceeding could be brought in which a claim founded on contractcould not be maintained by one applicant. The Full Court said at 186:
“Counsel for CBA also contended that the word “claims” is apposite only to civil proceedings; so this is an indication that parliament did not intend Pt IVA to be used for penalty proceedings. This submission overlooks the fact that the word “claims” has always been used in relation to proceedings in this court, including penalty proceedings: see O 4 of the Federal Court Rules. In enacting legislation specific to the court, parliament must be taken to have been aware of its forms and terminology. Further, s 22 provides:
“The Court shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided.” (Emphasis added)
Clearly, “claim” is used to encompass everything that might lawfully be brought before the court for a remedy. There is no reason to think that the same word was not used with the same general sense in s 33C.
The effect of FSU having no contract claim
The third basis upon which it was contended that the proceeding was not well-commenced was that FSU has no contract claim against CBA. It is said each applicant must assert a common cause of action in relation to each claim against a respondent.
In Ryan v Great Lakes Council (1997) 149 ALR 45, Wilcox J was concerned with a case where the group representative had a personal claim against some respondents, but not all of them. He accepted a submission that the proceeding was defective in relation to claims against the other respondents. At 48 Wilcox J said:
“in order to utilise the Pt IVA procedure against a given respondent, the applicant must have a personal claim against that respondent that is shared by at least six other persons. The legislation does not prevent several respondents being joined to a single Pt IVA proceeding, so long as the commencement and standing requirements are met by the applicant in respect of each of them.”
The present case is different from Ryan. FSU has a s 178 claim against the respondent, although not an accrued claim. Both parties accept the two claims constitute but a single “matter”. We think this understanding is correct: see Re Wakim; Ex parte McNally (1999) 163 ALR 270 at [140]. From this and from the wording of s 33C(1) it follows that FSU is entitled to bring the claims in the “matter” before the court, notwithstanding that it would not be entitled to take any personal benefit from the success of one of them, the contract claim, and notwithstanding that it has no contract claim of its own. There is no reason to read down the plain words of s 33C(1).
If this view is incorrect, in practical terms it would not matter. The second applicant, Mr Macey, has a personal claim for an order under s 178(6). He is therefore entitled to represent the group members, who have similar claims. It would be immaterial that there happened to be another applicant who was not so entitled.”
34 It is apparent from this judgment that the word “claim” is not to be viewed narrowly. It is also apparent that if one claim is brought that is maintainable by all applicants and all members of the representative group, then the proceeding may be brought under Pt IVA even if one applicant cannot maintain one of the causes of action pursued in the proceeding by another applicant and members of the representative group.
35 It may be that the word “claim” in s 33C(1)(a) is not to be treated as a reference to one common cause of action or one common “(any)thing that might lawfully be brought before the court for a remedy”. That is, members of a group who have different causes of action or “things” against the same respondent can be involved in a proceeding against the respondent under Pt IVA as long as the other requirements of s 33C are met. Section 33C(1)(a) does not speak of seven or more persons having “the same claim” against the same person and the language of the section does not warrant some narrow view of what is a claim. However, for reasons that follow, it is unnecessary to explore this question further as the applicant has demonstrated that he and each group member have at least one claim which is the same claim against each respondent, namely the application for a declaration pursuant to s 163A of the TP Act.
36 Senior counsel for the applicant identified the claim for declaratory relief based on s 163A referred to in pars 6 and 7 above as an application by the applicant and all members of the representative group against each respondent. I accept it is in the sense that as against each respondent, a claim (in both a narrow sense and also a broader sense) is made by the applicant and all members of the group. It is a bona fide claim in that it provides a springboard for a claim for damages if reliance can be established. As evident from the observations of Sackville J referred to in par 25 above, such claims are not alien to a proceeding properly brought under Pt IVA.
37 However, even if one moves beyond the application, the position remains, in my opinion, that the proceeding is of a character that can be brought under Pt IVA and involves a claim by all group members against each respondent with perhaps one qualification discussed in par 38 below. The structure of the statement of claim is such that each aspect of the conduct of the respondents impacting on a person is alleged to have impacted on the applicant and the group members. For example alleged representations are pleaded as having been made to the applicant and group members. Similarly the pleadings allege each aspect of the conduct of the respondents impacted on the applicant and members of the group, with the same effect. Again, for example, the representations of the respondents are alleged to have resulted in the applicant and members of the group not accepting the takeover offer and allowing the offer to lapse. Similarly the general consequences of the conduct impacting in the ways pleaded are alleged to be the same for the applicant and group members. For example it is alleged that the conduct of the respondents in making representations constituting conduct contravening s 52 resulted in each of the applicant and the group members suffering loss and damage.
38 The qualification referred to in the preceding paragraph concerns par 41 of the statement of claim. It reads:
“41. By reason of the Respondents’ conduct alleged in paragraphs s 9-26 inclusive, 28, 31, 34, 36, 39 and 40 above and in reliance upon the representations contained in paras 26, 28, 31, 34 and 36 above, the Applicant and the group members did not accept the varied takeover offers and allowed those offers to lapse.”
This is a reference to the making of the implied representations summarised in (i) in par 10 above (pars 9-26 and 34 of the statement of claim), the implied representations as to future matters summarised in (ii) (pars 28, 31 and 36 of the statement of claim), and the failure to inform summarised in (iii) (pars 39 and 40 of the statement of claim). Particulars of this paragraph have been provided by the applicant which read:
“33. It is evident from paras 26, 28, 31, 34 and 36 that the Applicant alleges that the same representations were made by each and every of the Respondents. The allegation is that the Applicant and the group members relied upon one or more of those representations by one or more of the Respondents.”
(Emphasis added)
Several respondents pointed to this particular as indicating that the claims are not advanced on the basis that there was reliance on the representations of all respondents. The particulars contemplate that there may have been, on the part of the applicant and group members, reliance on representations of only one or some of the respondents giving rise to a claim for damages against one or some only. While this is so, it does not involve an abandonment of the claim that representations were made to the applicant and each group member and the contention on behalf of them that the making of the representations involved misleading or deceptive conduct and a breach of duty. The application remains one in which claims are made by the applicant and all the group members against each respondent.
39 Use of the format in the pleadings referred to in par 37 above is not, in my opinion, merely designed to establish common claims as a matter of form. The pleadings are intended to identify the claims of the applicant and members of the representative group. The respondents submitted, in various ways, that it is unlikely or improbable that the way the claims are pleaded reflect what is likely to have occurred even if the claims can be made out. That is, it is unlikely that all the 33,000 or so shareholders who have, according to the solicitors retained by the applicant, signified interest in the proceedings or all the 68,000 or so shareholders who declined to accept the offer would have appreciated that all the pleaded representations were made (which are the immediate source of alleged liability), and all the more so given that they are implied representations to be inferred, in part, from other implied representations, would have all acted on all of them in the way alleged or would all have suffered loss for the reasons alleged.
40 However that approach, in my view, invites speculation that is not, in the circumstances, justified. The present proceeding is, in this respect, far removed, in my opinion, from the situation considered in Philip Morris (Australia) Ltd v Nixon (supra) where the Full Court, and in particular Spender and Hill JJ, were satisfied that the case pleaded, which plainly was cast in the widest of terms as to time, the impugned conduct and the consequences of that conduct, sought to raise claims that could not satisfy the requirements of s 33C(1)(c). The position of the respondents in this proceeding is, at best, akin to the situation described by the Full Court in Femcare Ltd v Bright [2000] FCA 512 at para 93 of a respondent being able to establish only uncertainty as to whether the claims of all group members will be made out against each respondent. In this respect, the description of the representative group referred to in par 8 above serves to limit the group on whose behalf the proceeding is brought to those who suffered loss as a result of the conduct of all or any of the respondents. This description allows for the possibility, perhaps to the ultimate benefit of some respondents (discussed in pars 42-44 below) that the claims might not succeed in their entirety against all respondents. However by adopting that description, the character of the claims themselves as formulated is not, in my opinion, altered. The description of the class in this way does not govern and qualify the terms on which the orders are sought in the application nor the terms on which the claims are pleaded and relief sought.
41 Counsel for Grant Samuel pointed to the allegations made in the statement of claim concerning the conduct of GIO and the directors preceding the publication of the Part B statement (such as the holding of the Annual General Meeting of GIO in November 1998) as providing, as I apprehended it, a basis for differentiating the claims against it from those against GIO and the directors. However the principal focus of the entire case of the applicant and group members is the contents and issuing of the Part B statement with which Grant Samuel was plainly involved. The reliance on earlier conduct is really, for present purposes, immaterial.
42 The description or identification of the class was the subject of submissions concerning not only compliance with s 33C(1) directly but also whether the description would offer the respondents the benefits of representative proceedings of the type flowing from the performance of the duty required by s 33ZB(a) as made effective by s 33ZB(b). That is, if the applicant fails, for example, to demonstrate contravention of s 52 or breach of an alleged common law duty, how would that conclude the proceedings to the benefit of the respondents in some final way. The question is raised because the group, as discussed earlier, is identified as being persons who suffered loss as a consequence of the pleaded conduct of all or any of the respondents. Because of this description, the analysis went, if no actionable loss was suffered because the respondents breached no statutory or common law duty, the group would be or would become devoid of members. The same could presumably be said if the respondents succeeded, not because breach was not established, but the breach did not cause loss.
43 The answer, in my opinion, lies in the explanation given by Wilcox J in Nixon v Philip Morris (Australia) Ltd (1999) 165 ALR 515 at 545 when dealing with a similar submission:
“Another Philip Morris complaint arises out of the fact that subpara (c) of the definition of group members in the revised draft refers to people “who commenced, continued, or failed to quit such smoking wholly or partly because of” the respondents’ conduct. Counsel say this ingredient in the definition depends upon a subjective matter; it will not be known whether a particular person fulfils the criterion stated in subpara (c) until that person gives evidence. If the person fails to establish the causal link referred to in subpara (c), it will follow the person is not a group member and, therefore, is not bound by the result of the proceeding. The person would be free to bring a later proceeding against the respondents or any of them.
The argument has a superficial charm. But it fails to sustain analysis. The result suggested by counsel is correct. However, the person could not base a later proceeding on either of the causes of action pleaded in this case. Both those causes of action depend upon the person having been influenced to commence or continue smoking, or to fail to quit smoking, by the conduct of one or more of the respondents. If it is held in this proceeding that a particular person was not so influenced, the doctrine of issue estoppel would prevent the person contending to the contrary in a later action. Of course, the person would not be precluded from bringing a later action on a different cause of action, one that did not depend upon establishing a link between a respondent’s conduct and the commencement or continuation of smoking; for example, a product liability claim. But it is always true that a group member is free to bring a second action against the same defendant in relation to a different cause of action.
The effect of acceptance of the respondents’ submission would be that the representative procedure could never be used in relation to a cause of action whose elements included reliance. A court’s determination of reliance always involves assessment of a subjective element: the effect (if any) of particular actions on the mind of a particular person or persons. Given that many of the causes of action provided by the Trade Practices Act involve reliance, this would represent a major limitation on the utility of Pt IVA of the Federal Court of Australia Act.”
44 This analysis by Wilcox J was referred to by Sackville J at pars 100 and 101 in the judgment on appeal discussed earlier. However the rejection by Wilcox J of this submission about the identification of the group does not, itself, appear to have given rise to an issue in the appeal. Nonetheless the concluding observations of Sackville J in the passage quoted in par 25 above are consistent with acceptance of its correctness. It is not a large step from accepting that a representative proceedings can properly be brought to decide a substantial common issue of fact or law where ultimate liability might depend, additionally (for example) on proof of reliance and/or damage (see also par 164 of Sackville J’s reasons) and accepting that the class may be defined by reference to loss or damage resulting from the conduct said to found liability.
45 While it is unnecessary to express a concluded view at this stage on what might be the effect of orders made if the respondents succeed, either by establishing, for example, no breach of duty or no relevant loss or damage, I would have thought the position was, in principle, no different to that discussed in Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398 by Toohey and Gaudron JJ at 423-424. That is, a person who had not elected to opt out of this proceeding would be estopped in future proceedings in which loss was said to arise from the conduct of the respondents pleaded in this matter, from contending the conduct was in breach of a particular statutory or common law duty if a finding of no breach of that duty is made in this proceeding or from contending relevant loss or damage resulted from that conduct if a finding was made there was none.
46 It has not been demonstrated that the proceeding does not satisfy the procedural requirements of s 33C(1)(a). Several respondents also submitted that the proceeding does not satisfy s 33C(1)(c). It is to be recalled that this provision requires the claims of an applicant and group members give rise to a substantial common issue of law or fact. The common issues identified by the applicant in this proceeding a set out in par 9 above. The applicant accepted that the matters identified in pars (c) and (d) did not concern common questions of law or fact though did not resile from the contention that the matters in pars (a), (b) and (e) did. In support of the submission that there was no commonality it was pointed out that the representations relied upon were by different people or entities and were not the same representations having regard to the way the various sets of representations were pleaded. Similarly the negligence pleaded was founded on these disparate sets of representations.
47 However implicit in this submission is an approach to the requirement in s 33C(1)(c) which is, in my opinion, an unwarrantedly narrow one. As the High Court said in Wong v Silkfield Pty Ltd (supra) at 381:
“Clearly, the purpose of the enactment of Pt VIA was not to narrow access to the new form of representative proceedings beyond that which applied under regimes considered in cases such as Carnie. This suggests that, when used to identify the threshold requirements of s 33C(1), "substantial" does not indicate that which is "large" or "of special significance" or would "have a major impact on the … litigation" but, rather, is directed to issues which are "real or of substance".
The circumstance that proceedings which passed the threshold requirement of s 33C may later be terminated as representative proceedings, by order made under s 33N, confirms rather than denies such a construction of s 33C (1). Further, as Foster J pointed out, the broadening provisions of subs (2) of s 33C emphasise the width of the entitlement conferred by s 33C (1) to commence a representative proceeding.”
48 The Court then observed that the only common issue of fact in that matter identified by Foster J concerned a representation made by the respondent during the sale of units to the applicants that "written statements delivered pursuant to s 49 [of the Building Units and Group Titles Act 1980 (Qld)] were accurate".
49 In the present proceeding a not dissimilar contention is made about the accuracy of the Part B statement. It is also a not dissimilar contention to that made in Prudential Assurance Co Ltd v Newman Industries Ltd [1981] 1 Ch 229, referred to in Carnie v Esanda Finance Corporation Ltd (supra), where it was alleged by one shareholder in a representative proceeding brought on behalf of all shareholders (except the defendants) that shareholders had been induced to approve a transaction by means of positive misrepresentation and deliberate concealment of the true facts in a tricky and misleading circular published by the defendants (so described at 233).
50 It is contended in this proceeding that the Part B statement is inaccurate, in the sense that its preparation and contents gave rise to implied representations in it which were misleading or deceptive in a number of respects. The applicant contends the same implied representations were made by all respondents though the facts from which it can be inferred those representations were made varies somewhat between Grant Samuel and other respondents. However approval (express or implied) of the publication of the Part B statement is relied on as against all respondents. The implied representations include (par 28 of the statement of claim for GIO, par 31 for the directors and par 36 for Grant Samuel):
“(a) the valuation of GIO shares contained in the Part B Statement was accurate and reliable;
(b) the profit forecast for GIO for the financial year ending 30 June 1999 contained in the Part B statement was accurate and reliable.”
51 A central issue in this proceeding is whether conduct associated with the publication of the Part B statement led to conduct on the part of GIO, Grant Samuel and the directors that contravened, inter alia, s 52 of the TP Act or s 42 of the FT Act. In order to ascertain whether there has been contravention it will be necessary to deal with the allegation that the statement is inaccurate in the way just discussed. That investigation will involve a consideration of what, in my opinion, is a substantial common issue of fact raised in the proceeding. By suggesting there is no common issue by saying that various parts of the Part B statement may not be attributable to all respondents or that the applicant and the group members may have understood that one or some, but not all, the implied representations were being made, and possibly different implied representations in combination, is to treat s 33C(1)(c) as creating too high a threshold. It would create a procedural requirement that would be at odds with the purpose of Pt IVA which, as the judgment of the High Court in Wong v Silkfield Pty Ltd (supra) makes plain, requires that s 33C should not be viewed as operating in a narrow or unduly limiting way. It may be that the identification of the common issue in par (a) is too imprecise but that does not mean that the orders sought by the respondents should be made. Rather some greater attention should be given to the formulation of the common issues. I am satisfied that s 33C(1) (c) does not create a procedural bar to the continuation of this proceeding though I presently doubt that the issues in pars (b) and (e) are common but that is a matter I need not explore given my conclusion about par (a).
52 At least the second respondent sought the exercise of the power conferred by s 33N as a means of bringing to a conclusion the representative proceeding as an alternative to an order of the type made in Philip Morris (Australia) Ltd v Nixon (supra). In refusing to make such an order I am not precluding argument whether an order should be made under that section at some later stage in this proceeding as foreshadowed by at least some respondents.
53 I dismiss the various notices of motion and order the respondents to pay the applicant’s costs of the motions.
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I certify that the preceding fifty three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore. |
Associate:
Dated: 12 May 2000
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Counsel for the applicant: |
Mr J W K Burnside QC with Mr N O’Bryan |
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Solicitor for the applicant: |
Maurice Blackburn Cashman |
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Counsel for the first respondent: |
Mr T F Bathurst QC with Mr I M Jackman |
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Solicitor for the first respondent: |
Ebsworth & Ebsworth |
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Counsel for the second respondent: |
Mr T M Jucovic QC with Mr D J Hammerschlag |
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Solicitor for the second respondent: |
Phillips Fox |
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Counsel for the third, sixth, eighth, ninth, tenth and eleventh respondents: |
Mr C G Gee QC with Mr S W Climpson |
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Solicitor for the third, sixth, eighth, ninth, tenth and eleventh respondents: |
Sparke Helmore |
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Counsel for the fourth and seventh respondents: |
Mr J R Sackar QC with Ms M Sloss |
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Solicitor for the fourth and seventh respondents: |
Arnold Bloch Leibler |
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Counsel for the fifth respondent: |
Mr N C Hutley SC with Mr P Whitfield |
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Solicitor for the fifth respondent: |
Corrs Chambers Westgarth |
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Date of Hearing: |
19 April 2000 |
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Date of Judgment: |
12 May 2000 |
