FEDERAL COURT OF AUSTRALIA

Kirby v Centro Properties Limited [2010] FCA 1115

THE COURT ORDERS THAT:

1.    The applicant have leave within 14 days of this day to join PricewaterhouseCoopers as a respondent to the Application herein and further to amend the Further Amended Statement of Claim herein to conform with the draft second further amended statement of claim forming part of Exhibit MJH-1 to the affidavit of Martin James Hyde sworn 22 January 2010 and filed herein and otherwise conforming with the reasons for judgment published this day.

2.    Within 21 days of the filing and service of the Further Amended Statement of Claim referred to in paragraph 1 of this Order, each respondent including the added respondent, PricewaterhouseCoopers, file and serve its Further Amended Defence or its Defence thereto as the case may be.

3.    The costs of all parties of and incidental to the motion on notice herein dated 22 January 2010 be reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

THE COURT ORDERS THAT:

1.    The motion on notice herein dated 22 January 2010 insofar as it seeks leave to join Nicholas Stott as an applicant and PricewaterhouseCoopers Securities Ltd as a respondent in the Application herein and further to amend the Further Amended Statement of Claim herein to include allegations appropriate to charge PricewaterhouseCoopers Securities Ltd, be refused.

2.    The applicant have leave within 14 days of this day to join PricewaterhouseCoopers as a respondent to the Application herein and further to amend the Further Amended Statement of Claim herein to include allegations appropriate to charge the added respondent, PricewaterhouseCoopers, and, subject to paragraph 1 of this Order, otherwise to conform with the draft second further amended statement of claim forming part of Exhibit MJH-1 to the affidavit of Martin James Hyde sworn 22 January 2010 and filed herein and with the reasons for judgment published this day.

3.    Within 21 days of the filing and service of the Further Amended Statement of Claim referred to in paragraph 2 of this Order, each respondent including the added respondent, PricewaterhouseCoopers, file and serve its Further Amended Defence or its Defence thereto as the case may be.

4.    The costs of all parties of and incidental to the said motion on notice be reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

THE COURT ORDERS THAT:

1.    The motion on notice dated 22 January 2010, insofar as it seeks leave to amend the Application herein dated 23 May 2008 and the Amended Statement of Claim herein dated 28 October 2008 be refused.

2.    The costs of all parties of and incidental to the said motion on notice be reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    In proceeding No VID 326 of 2008 (“the CNP proceeding”) the applicant (“Kirby”) seeks leave to amend his Application by adding PricewaterhouseCoopers (“PwC”) as a third respondent. Kirby further seeks leave to amend his further amended statement of claim by incorporating in it allegations said to be appropriate to charge the proposed added respondent, PwC. PwC is already a cross-respondent in the proceedings as a result of a cross-claim against it, having been filed by the respondents Centro Properties Limited and CPT Manager Limited (collectively referred to as “the Centro respondents”).

2    In proceeding No VID 327 of 2008 (“the CER proceeding”) the applicant (“Kirby”) seeks leave to amend his application by adding Nicholas Stott as second applicant and PwC as a third respondent and another corporate entity, PricewaterhouseCoopers Securities Ltd (“PwC Securities”) as a fourth respondent. In the same proceeding Kirby further seeks leave to amend his further amended statement of claim by incorporating in it allegations said to be appropriate to charge each of the proposed added respondents, PwC and PwC Securities. PwC is already a cross-respondent in the CER proceeding as a result of a cross-claim against it having been filed by the Centro Respondents. PwC Securities is not presently a party to the CER proceeding.

3    In proceeding No VID 366 of 2008 (“the Vlachos proceeding”) the applicants Nicholas Vlachos, Monatex Pty Ltd and Ramon Franco (“the Vlachos applicants”) seek leave to amend their application by adding PwC as a fifth respondent. In the same proceeding the Vlachos applicants seek leave further to amend their amended statement of claim by incorporating in it allegations said to be appropriate to charge the added respondent, PwC. PwC is already a cross-respondent in the Vlachos proceeding as a result of a cross-claim against it having been filed by the Centro respondents, Centro Retail Limited and Centro MCS Manager Limited.

Section 33C and the correctness of Philip Morris

4    The first basis on which PwC opposes the leave to amend sought by Kirby’s motion in the CER proceeding, is that:

The proposed amendments would have the effect that the matter was not properly constituted as a representative proceeding under Pt IVA [of the Federal Court Act]… [as]… the proposed amendments would have the effect that the VID 327 Proceeding failed to meet the threshold requirement under s 33C(1)(a)…

5    Section 33C(1) of the Federal Court Act 1976 (Cth) provides:

33C  Commencement of proceeding

(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.

6    As I understood it, Mr McHugh SC, who appeared before me with Mr Nixon of Counsel for PwC, contended primarily that the Court ought not to exercise its discretion to grant leave to amend so as to allow proceedings to be constituted in a manner in which they could not have been commenced. In advancing this submission, Mr McHugh referred to the High Court’s explanation of s 33C in Wong v Silkfield (1999) 199 CLR 255, where, at 266, their Honours reasoned that section:

is concerned with the commencement, not subsequent conduct, of litigation using the procedures provided in Pt IVA. In terms, s 33C(1) looks to the claims made by seven or more persons against the same person, being claims which are in respect of, or arise out of, the same, similar or related circumstances, and asks whether claims so understood give rise to a substantial common issue of law or fact.

7    Where there are two or more respondents, it was then submitted, there is a requirement that “each of the applicants and the group members have claims against each of the respondents”, a requirement said to be supported by a body of authority, including Philip Morris (Australia) Ltd v Nixon (2000) 170 ALR 487 (“Philip Morris”), esp at 514, where Sackville J, with whom Spender and Hill JJ agreed, said that;

[126]    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 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.

[127]    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. [Original emphasis]

Particular emphasis was then placed on what Sackville J said, at 515:

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.

“That”, it was submitted in writing, “is precisely what the applicants purport to do by way of the [proposed amended pleading in the CER proceeding], bringing a claim against PwC Securities only on behalf of one of the applicants and an undefined ‘some’ of the group members”.

8    I was then referred to the endorsement by another Full Court of this Court in King v GIO Australia Holdings Ltd [2000] FCA 1543, of what had been said in Philip Morris about the requirement that every applicant and group member have a claim against every respondent. However, Counsel for the applicants was at pains to point out, on the return of these motions, that the approach to s 33C taken by Sackville J in Philip Morris has not commanded universal assent. In Bray v F Hoffman-La Roche Ltd (2003) 130 FCR 317 (“Bray”), the issue before the Full Court which is relevant for present purposes was whether injunctions sought by the applicant were sufficient to discharge the requirements of s 33C(1)(a), as the learned trial Judge had held in that case they were; (see Bray v F Hoffman-La Roche Ltd (2002) 118 FCR 1). In the Full Court, Carr J was prepared, in order to resolve the appeal, to assume that Philip Morris had been correctly decided on the point, and, consequently, upheld the trial Judge’s reasoning: see at 343-4. However, at 344-6, his Honour made these observations obiter:

[122]    As I have held that each group member in this application has a relevant claim against all of the respondents, it is strictly not necessary for me to decide this question. However, I shall briefly express my views. The question is whether the decision in Philip Morris was wrong on this point. With respect, I think that it is clear (to the extent required) that it was wrongly decided on this point and should not be followed. I agree with Finkelstein J's reasons for not following it, but would add a few comments.

[123]    First, it should be noted that the applicants in Philip Morris accepted as a threshold requirement that their pleading had to allege facts that established that they and every member of the represented class had a claim against every respondent -- see Spender J at [3] and Sackville J at [108] and [126].

[124]    Second, as Mr McArthur pointed out, the decision in Philip Morris at first instance on this point was based on a misunderstanding by Wilcox J about what he had decided in his earlier decision in Symington v Hoechst Schering Agrevo Pty Ltd (1997) 78 FCR 164. In Nixon v Philip Morris (Australia) Ltd (1999) 95 FCR 453, in part of a passage cited by Sackville J on appeal, Wilcox J relied upon his decision in Symington as being one in which he held that s 33C(1)(a):

“... requires that the applicant, or each one of several applicants, and each group member must have a claim against each respondent; it is not sufficient for one applicant to make a claim against one respondent and another applicant or a group member to make a claim against some other respondent.”

[125]    That is not what his Honour had held in Symington. In Symington, Mr and Mrs Symington, who were graziers, sued various respondents on behalf of themselves and other persons who suffered loss when their cattle ingested a pesticide supplied as an ingredient in different products by the various respondents. The applicants claimed that the particular product containing the pesticide which contaminated their cattle was that supplied to their neighbour by the first respondent. They conceded that they personally had no claim against the other six remaining respondents. Wilcox J held that as there was more than one respondent, the applicants had to have standing to sue each of them. As this was not so, he dismissed the applicants' claims as against the other six respondents. What his Honour held in Symington appears at 167, where, having referred to s 33D(1) as being designed to abrogate the common law rule that a person can only bring an action for damages on his or her own behalf, his Honour said this:

“The first thing to note about the subsection [s 33D(1)] is that it refers to a person, referred to in paragraph 33C(1)(a), who has ‘a sufficient interest to commence a proceeding on his or her own behalf’. That is, one of the seven or more persons who have claims against ‘the same person’ can bring a representative proceeding against that other person ‘on behalf of’ the other six or more persons referred to in that paragraph. As I interpret this provision, it means that where there is a group of seven or more persons, all of whom have claims against a particular person, then any one of those seven or more persons has a sufficient interest to commence a representative proceeding against that person on behalf of the other members of the group. I think it is clear that the applicant - that is to say, the representative party - must himself or herself have standing to sue the particular respondent and, where there is more than one respondent, each of them. It is not enough that the applicant has standing to sue one respondent and other people have claims against some other respondent which arise out of similar or related circumstances and give rise to a substantial common issue of law or fact."

[126]    His Honour did not have to decide in Symington that every group member must have a claim against every respondent. The problem was more basic than that. The problem was that Mr and Mrs Symington lack standing to sue the other six respondents. His Honour had reached a similar conclusion in similar circumstances in Ryan v Great Lakes Council (1997) 78 FCR 309.

[127]    As Professor V Morabito points out in an article entitled “Class Actions Against Multiple Respondents” (2002) 30 Federal Law Review 295 at 311-313, the problem identified in cases such as Symington and Ryan has been resolved in at least two subsequent proceedings quite simply. In Schneider v Hoechst Schering Agrevo Pty Ltd [2000] FCA 154 there were two respondents, namely, the manufacturer of a particular chemical herbicide and the retailer. The applicant had a claim against both respondents. He brought representative proceedings against the manufacturer on behalf of all affected farmers and also brought, in the one application, representative proceedings against the retailer on behalf of a sub-group of the represented parties, namely those who had purchased the chemical herbicide from the retailer. It would appear that not all of the represented persons had a claim against the retailer, but the matter proceeded to judgment.

[128]    Similarly, later in the Ryan proceedings, Mr Ryan was given leave to amend to join additional applicants, each of whom made a personal claim against a particular grower or distributor and was therefore competent to represent other group members who had claims against that grower or distributor -- see Ryan v Great Lakes Council (1999) 102 LGERA 123. Wilcox J subsequently delivered a judgment after trial and the matter went to a Full Court. As Lindgren J noted in Graham Barclay Oysters Pty Ltd v Ryan (2000) 102 FCR 307 not all of the group members claimed against a particular grower or distributor of oysters. But that factor does not appear to have played any part in the outcome of the case.

[129]    In my view, such a course fits squarely with the language of s 33C(1) and at the same time satisfies the policy behind the introduction of Pt IVA.

[130]    There are sufficient procedural safeguards in s 33C(1)(b) and (c) to protect the integrity of the court’s processes, ie that the claims arise out of the same, similar or related circumstances and give rise to a substantial common issue of law or fact. There are other procedural safeguards in Pt IVA to ensure that representative proceedings are not misused. For those reasons, were it necessary for me to decide the point, I would decline to follow Philip Morris to the extent that it is authority for the proposition that, where there is more than one respondent, every group member must have a claim against every respondent in a representative proceeding, on the basis that it was clearly wrong on that point.

9    Although Branson J was prepared to assume, for the purposes of the case then before the Full Court, the correctness of Philip Morris, she expressed some reservations about the conclusion reached in Philip Morris. At 359, her Honour said;

[199]    It was argued before this court by the applicant that Philip Morris was, to the above extent, clearly wrongly decided. Each of Carr and Finkelstein JJ has indicated that he accepts the above argument. I do not feel able to accept the argument that Philip Morris is, in this regard, clearly wrong. While the decision has attracted criticism, it reflects a construction of Pt IVA of the FCA which, in my view, is plainly open. I consider that Philip Morris should be followed by this court unless and until the High Court takes a different view of the proper construction of s 33C(1) of the FCA.

[200]    I should add that, notwithstanding my view that this court should follow Philip Morris, I would not reject the possibility that s 33C(1) allows an applicant who has a claim against more than one respondent to commencing a representative proceeding on behalf of more than one group (eg on behalf of two subgroups of members where within each subgroup each member has a claim against the same respondent or respondents). Perhaps less contentiously, I would also not reject the possibility of two proceedings commenced under s 33C being consolidated or ordered to be heard together. However, full argument was not addressed to the court on these possibilities, nor were they called in aid by the applicant. For these reasons I express no concluded view concerning them.

[201]    Like the primary judge, I therefore proceed on the basis that for this proceeding to continue as a representative proceeding under Pt IVA of the FCA, the applicant and every group member must have a claim against every respondent. On this basis it is necessary to give consideration whether the claim made by the applicant on her own behalf, and on behalf of the group members, against the respondents for relief under s 80 of the TPA is sufficient, as the primary judge found, to enable the proceeding to be brought as representative proceeding under Pt IVA of the FCA.

10    Unlike Carr and Branson JJ, Finkelstein J was not prepared to assume, in Bray, the correctness of Philip Morris. At 373-4, his Honour said;

[248]    It seems to me that if Philip Morris be correctly decided, we are heading back in the direction of 1852. This result, so it seems to me, is so undesirable that it should be avoided at all costs unless, of course, parliament has mandated it in clear and unambiguous language. I am of the very firm view that there is nothing in the language of s 33C(1), when considered in isolation or in its setting, which requires that result. It is as well to recall the words of the section. Section 33C(1)(a) provides that "subject to this Part, where seven or more persons have claims against the same person ... a proceeding may be commenced by one or more of those persons as representing some or all of them". It can immediately be acknowledged that a properly constituted representative proceeding must involve a group of seven or more persons each of whom has a claim or claims against one person. But that is all the section requires. It simply does not address the situation where some members of the group, say 10 out of a group of 15, also have claims (that is, causes of action) against some other person, being causes of action which satisfy both s 33C(1)(b) (each claim arises out of the same circumstances) and s 33C(1)(c) (each claim gives rise to common issues of law or fact). Is it necessary for the claims of this smaller group to be prosecuted in a separate proceeding or can they be joined in the proceeding brought by the larger group? I will not place a construction on s 33C which requires separate proceedings to be instituted. If it were impermissible to bring such an action, all the objectives of Pt IVA, the reduction of legal costs, the enhancement of access by individuals to legal remedies, the promotion of the efficient use of court resources, ensuring consistency in the determination of common issues, and making the law more enforceable and effective, would be undermined.

11    As appears from the extracts which I have set out from the Full Court’s reasoning in Bray, the gravamen of the criticism levelled at the approach taken in Philip Morris is, first, that it is too restrictive, and, secondly, that it detracts from the purpose of Pt IVA. Although I acknowledge the force of what was said by the members of the Full Court in Bray, like other single Judges of the Court who have been faced with the conflict between the views expressed in Philip Morris and in Bray (see, for example, Johnstone v HIH Insurance Ltd [2004] FCA 190, per Tamberlin J, at [38]; Guglielmin v Trescowthick (No 2) (2005) 220 ALR 515, per Mansfield J, at 521-2, and, dealing with Pt 4A of the Supreme Court Act 1986 (Vic), Rod Investments (Vic) Pty Ltd v Clark (No 2) [2006] VSC 342, per Hansen J, at [15] ff, [31]-[36]), I regard what was said in Bray about the availability of s 33C as obiter dicta and therefore not binding on me. I am bound, however, to apply the principle enunciated by the earlier Full Court in Philip Morris unless and until, as Branson J said in Bray, the High Court decides otherwise. Like her Honour, I am unable to find any firm basis for the contention that Philip Morris is “plainly wrong”; even if I had been, I could not, sitting alone, decline to follow it.

12    Mr M B J Lee of Counsel for the Kirby applicants, after making brief submissions about the Philip Morris point, characterised it as “irrelevant”. This contention had two limbs; first, that the “threshold requirements”, as the criteria prescribed by s 33C(1) were called, have been “spent”, in the sense that there is now a Pt IVA proceeding on foot; secondly, or in any case, in the CER proceedings, both applicants and all group members assert “claims” against all of the respondents.

13    The first limb of this argument as I have summarised it proceeds from the premise that, when s 33C(1) speaks of proceedings which “may be commenced”, the paragraphs which describe the conditions for that commencement of proceedings apply only at the commencement, and, if they are then satisfied, “the threshold has been passed once and for all”.

14    In my view, the requirements of s 33C, although operating at the “threshold”, as the High Court observed in Wong v Silkfield Pty Ltd (supra), at 266, continue to enliven the proceedings as representative proceedings, although they do not govern their subsequent conduct. If this were not so, the requirement which the Full Court in Bray discerned as having been recognised in Philip Morris could readily be circumvented by confining the proceedings to one applicant representing seven or more persons all having claims against the same respondent and, later, amending the application to join another respondent, against whom only some of the group members have claims. Moreover, if it matters, the motion for leave to join PwC Securities as a respondent can properly be regarded as the commencement or at the “threshold” of the proceedings against that proposed respondent.

15    I also consider that the continuing operation of the threshold requirements erected by s 33C was recognised by Wilcox J in Symington v Hoechst Schering Agrevo Pty Ltd (1997) 78 FCR 164, where his Honour observed, at 166:

In Tropical Shine Holdings Pty Limited v Lake Gesture Pty Limited (1993) 45 FCR 457, I considered the proper interpretation of para (a), in light of the fact that s 33H(2) of the Act provides that, in describing or otherwise identifying group members, it is not necessary to name them or specify their number. The problem was to reconcile the two provisions. Section 33C(1)(a) seemed to require an assertion of the existence of more than seven persons with claims, whereas s 33H(2) relieved the applicant from having to specify the number. At 462 I said:

“I think the only way of making sense of section 33C(1)(a) is to interpret it as restricting the use of Part IVA to claims that, by their nature and assuming that they have substance, are shared by at least seven persons. I use the word ‘shared’ in the sense explained by pars (b) and (c), that is, that the claims of all the persons are in respect of, or arise out of, the same, similar or related circumstances and give rise to a substantial common issue of law or fact. Interpreted in this way, the paragraph fulfils the function of weeding out cases that should clearly not be brought as representative proceedings because it is obvious that less than seven people share the claim whilst preserving the principle embodied in s 33H.”

The application of this approach to the present case means it is not necessary for the applicants to specify the number of people who have claims against any particular respondent, but they must be able to satisfy the Court at some appropriate time that, by its nature and assuming it has substance, their claim against any particular respondent is shared with at least five other persons. [Emphasis added]

16    The claims made in paragraph 3(c)(i) and (ii) of the proposed amended application in the CER proceeding are confined to PwC Securities, as is the claim, as of right, against the same proposed additional respondent for statutory compensation under s 729 of the Corporations Act 2001 (Cth). The confined nature of the latter claim is made clear by paragraph 4 of the proposed amended application which seeks to join Nicholas Stott as “the Second Applicant” in addition to the original applicant, Kirby. Paragraph 4 recites:

On the grounds listed in the second further amended statement of claim, the Second Applicant and those Group Members being the Relevant CSF Securityholders (as defined in paragraph 2 of the second further amended statement of claim) seek as against PWCS an order for statutory compensation under section 729 of the Corporations Act together with interest.

17    It also follows that some of the “questions of law or fact common between the claims of the applicants and Group Members” identified in paragraph 5 of the proposed amended application are not common to both of the applicants and all of the Group Members. For example, the questions of entitlement to the declarations sought in paragraph 3(c) of the proposed amended application are common only between the claims of one applicant, Mr Stott, and some Group Members as against PwC Securities. Similarly, the question of entitlement to compensation under s 729 of the Corporations Act is common only between the “Relevant CSF Securityholders” and PwC Securities.

18    In support of the second limb of his argument seeking leave to join PwC Securities, Mr Lee pointed out that the original applicant, Kirby, as well as Mr Stott, seeks declarations against PwC Securities which constitute the making of a “claim” against that proposed respondent within the meaning of s 33C(1)(a).

19    It is true that Lindgren J in Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd (1998) 84 FCR 512, at 523, made it clear that a “claim” in the relevant sense is not synonymous with “cause of action”. His Honour there said;

As to the meaning of “claims” in s 33C(1)(a), certain matters are tolerably clear.

First, the claims must be claims recognised by the law.

Second, s 33C(2)(a)(i) shows that a claim for discretionary equitable relief qualifies, and, therefore, that the “claims” to which s 33C(1)(a) refers are not confined to claims to relief as of right.

Third, whatever the word “claims” in the provision denotes, they have an existence independent of, and antecedent to, the commencement of the proceeding, since it is only if seven or more persons have claims against the same person that a proceeding under Pt IVA may be commenced by one or more of them. Perhaps this signifies that it is not a sufficient condition of the existence of a claim that a claim has been “made”, “asserted” or “threatened”.

Fourth, for obvious reasons, s 33C(1)(a) does not speak of a “right” or “entitlement” to relief — a matter which cannot be known until a final hearing.

Fifth, it is not required that the persons who have the claims be aware that they have them, let alone that they have asserted them. [Original emphasis]

20    However, in my view, the “claim” which would be advanced by Mr Kirby against PwC Securities would not satisfy the positive requirements which Lindgren J identified in that passage. In the first place, a claim against another for a declaration which is not declaratory of some right or interest existing in the claimant is not a claim recognised by the law. Secondly, when his Honour noted that “the ‘claims’ to which s 33C(1) refers are not confined to claims for relief as of right”, he was, I consider, adverting to the well-known distinction between relief as of right, i.e., founded in a cause of action, and relief which lies in the discretion of a court; see e.g. Guaranty Trust Company of New York v Hannay & Company [1915] 2 KB 536. Here, no basis has been pleaded on which a court could erect any exercise of a discretion favourable to Kirby against PwC Securities. As Lindgren J pointed out, it is not enough that such a claim has been “made” or “asserted” on behalf of Kirby. It is also important to bear in mind that in a passage in his reasons in ACCC v Giraffe World (supra) immediately preceding that set out at [19] above, Lindgren J observed;

Notwithstanding the foregoing, I doubt that the ACCC is entitled to act as a representative party under Pt IVA where it has no interest of its "own" to protect and has only statutory standing to apply for a remedy which will protect a public interest. The reason is that I doubt that in such circumstances the ACCC has a "claim" against the respondent for the purposes of s 33C(1)(a) of the FCA Act.

It is not without significance in this context that Finkelstein J in Bray, although rejecting the conclusion reached by the Full Court in Philip Morris, equated in the passage quoted at [10] above “claims” in s 33C with “causes of action”.

21    In the light of my conclusion that the requirement identified in Philip Morris that every applicant and every group member have a claim against all respondents is a continuing one and not confined to the commencement of the proceedings, it follows that leave to add PwC Securities as a respondent in the CER proceeding should be refused.

Aspects of the pleading of the proposed further amended statements of claim

22    The constitution of each of the CNP proceeding, the CER proceeding and the Vlachos proceeding in its present form has been described at [1]-[3] of these reasons. In the existing amended statement of claim in the CER proceeding, it is alleged that, on or about 17 August 2005, each ordinary share in the first respondent, Centro Retail Limited, was stapled to an ordinary unit in the Centro Retail Trust which are thereafter called “the CER stapled securities” which were subsequently quoted and traded on the Australian Stock Exchange. It is further alleged that each of Centro Retail Limited and Centro MCS Management Limited was a responsible entity for the Centro Retail Trust. In that capacity, it is alleged, those respondents commenced to operate as Centro Retail Group (“CER”) reporting as one entity and aggregating financial reports.

(a)    The PwC obligations

23    Among the paragraphs of the proposed further amended statement of claim in the CER proceeding seeking to charge PwC is paragraph 104 in which it is alleged that PwC “were obligated”;

a.    pursuant to section 307 of the Corporations Act to form an opinion:

i.    whether the financial reports of CER were in accordance with the CER’s Accounting Obligations;

ii.    whether PWC had been given all information, explanation and assistance necessary for the conduct of the audit;

b.    pursuant to section 307A of the Corporations Act to conduct the audit in accordance with applicable auditing standards including AASB 1039;

c.    pursuant to section 314(2) of the Corporations Act to form an opinion as to whether the concise financial report complies with the accounting standards made for the purposes of section 314(a) of the Corporations Act.

24    A similar allegation is proposed to be made in paragraph 75 of the proposed further amended statement of claim in the CNP proceeding. In each proposed further amended statement of claim the obligations thus attributed to PwC are thereafter called “the PwC Obligations.” It is next alleged that PwC’s contract or retainer to provide services to CNP and CER was constituted by various documents including “a client assistance letter and schedule dated 15 May 2007”. Paragraph 107(b) of the proposed further amended statement of claim in the CER proceeding then alleges that;

b.    the work to be performed by PWC pursuant to the PWC Contract included that PWC were obliged:

i.    “to provide verbal audit clearance to the Board Audit and Risk Management Committee on the Appendix 4E’s of … CER on 2 August 2000”; and/or

…

ii.    to provide “verbal audit clearance to management on 27 July 2007 and to the Board Audit & Risk Management Committee on the Appendix 4E’s of … CER on 2 August 2007”.

25    Particulars subjoined to those sub-paragraphs indicate that the source of the obligation alleged in each of sub-paragraphs i. and ii. of paragraph 107(b) was page 3 of the Client Assistance Schedule referred to at [24] of these reasons.

26    In support of its opposition to leave to amend the further amended statement of claim, PwC point to the fact that the relevant paragraph on page 3 of the Client Assistance Schedule is in these terms;

We aim to provide verbal audit clearance to management on 27 July 2007 and for Board Audit & Risk Management Committee on the Appendix 4E’s of Centro and CER on 2 August 2007 … achieving these clearance dates depends on our receiving all required information according to an agreed timetable.

27    As I understand it, this attack on the proposed amendment is premised on the proposition that PwC’s obligation to provide verbal audit clearance to management by 27 July 2007 and clearance of the “Appendix 4E’s” of Centro and CER to the Audit and Risk Management Committee by 2 August 2007 was conditional on PwC’s receiving all required information according to an agreed timetable. The satisfaction of that condition has not been pleaded. However, Counsel for the applicants has pointed to evidence of a document sent to the respective Audit and Risk Management Committees by two partners of PwC and dated 5 July 2007 which recited under the heading “Year End Audit Timetable”;

PWC and management have worked together to agree upon an audit timetable to achieve the year end reporting timetable.

Listed below are the key dates that have been agreed with management in relation to the 2007 year end audit:

Verbal audit clearance of Appendix 4E financial report to management on Friday 27 July for Centro Properties Group and Centro Retail Group.

Verbal audit clearance of Appendix 4E financial report to the Board Audit & Risk Management Committee on Thursday 2 August 2007 for Centro Properties Group and Centro Retail Group.

28    That document was said to reflect an anterior agreement to the effect alleged, for example, in paragraph 107(b) of the proposed further amended statement of claim in the CER proceedings. I agree with the contention of Counsel for the applicants that it is not necessary for the proposed further amended statement of claim to plead affirmatively that the condition described at [27] above has been satisfied. However, Counsel for the applicants has offered to amend sub-paragraph 107(b) of the proposed further amended statement of claim in the CER proceeding to read;

The work to be performed by PWC pursuant to the PWC Contract by 3 August 2007 included that PWC were obliged to provide verbal audit clearance to the Board Audit and Risk Management Committee on the Appendix 4E’s [of CER].

29    A similar amendment, Counsel intimated, would be made to the corresponding paragraph of the further amended statement of claim in the CNP proceeding. In written submissions in reply, PwC contended that the proposed “clarifying” amendments just indicated would not cure the deficiencies to which PwC had pointed because “it is apparent from the face of PwC’s retainer that it was under no contractual obligation to provide verbal audit clearance on the Appendix 4E”. However, I regard it as arguable that the “agreement” in the letter of 5 July 2007 was incorporated in, or constituted a variation, of PwC’s retainer. Moreover, it remains open to PwC to plead in its defence, as contemplated by O 11 r 6 of the Rules of this Court, that the provision of verbal audit clearance was subject to a condition precedent, the receipt of all required information according to an agreed timetable, which condition precedent was not fulfilled.

30    In the circumstances, I shall grant leave to add PwC as a respondent to each of the CNP proceeding and the CER proceeding and further to amend the amended statement of claim in each proceeding to include allegations of the PwC obligations and otherwise to conform, so far as it is applicable, with each of the draft further amended statements of claim exhibited to the several affidavits of Martin James Hyde sworn 22 January 2010. That leave will be granted on condition that the sub-paragraphs respectively numbered 78(b) and 107(b) in the further amended statements of claim in the CNP proceeding and the CER proceeding be amended in the way indicated in [28] above and that the particulars to each of those sub-paragraphs be deleted or amended to refer to the document dated 5 July 2007 noted at [27] of these reasons.

(b)    The PwC Preliminary Final Report Representations

31    In the proposed further amended statement of claim in each of the CNP proceeding and the CER proceeding it is alleged that, on or about 3 August 2007, PwC represented to CNP and CER respectively that PwC’s audit was largely complete and had been undertaken in accordance with Australian Auditing Standards, that PwC’s Final Preliminary Report, subject to certain irrelevant matters, gave a true and fair view of the financial position and performance of CNP and CER respectively, contained opinions that had been formed with reasonable skill and care and was appropriate for approval. Those representations are collectively called “the PwC Preliminary Final Report Representations”.

32    It is then alleged that the PwC Preliminary Final Report Representations were false, misleading or deceptive in a material particular in that the Preliminary Final Report did not give a true and fair view of the respective financial position and performance of CNP and CER and was inappropriate for approval, the audit said to have been “largely complete” as at 3 August 2007 had not been undertaken in accordance with Australian Accounting Standards and PwC had not exercised reasonable skill and care in forming the opinions expressed in making the PwC Preliminary Final Report Representations in relation to the Preliminary Final Report. As a result, the PwC Preliminary Final Report Representations are alleged to have contravened s 12 of the Fair Trading Act 1999 (Vic) (“the FTA”) and are designated by the shorthand expression “the PwC First Contravening Conduct.”

33    It is next alleged, for example in paragraphs 86 and 87 of the proposed further amended statement of claim in the CNP proceeding;

86    The PWC First Contravening Conduct caused (by materially contributing to) the decision of the Chairman of CNP, Brian Healey to sign the Preliminary Final Report and for CNP to lodge it with the ASX and for CNP to make:

a.    the First Financial Report Compliance Representation; and/or

b.    The August Debt Representations.

Particulars

The applicant repeats the particulars subjoined to paragraph 37 of the CNP cross claim dated May 2009 (CNP cross claim); the Preliminary Final Report would not have been approved by the Board of CNP and lodged with the ASX and the First Financial Report Compliance Representation and August Debt Representation would not have been made by CNP but for the PWC First Contravening Conduct.

87    By reason of the PWC First Contravening Conduct, Group Members were persons who suffered loss, injury or damage because of a contravention of section 12 of the FTA.

Particulars

The loss suffered by the applicant and Group Members is:

a.    the difference between the price at which it or they acquired their interest in the CNP stapled security (with respect to the applicant as identified in the particulars subjoined to paragraph 69) and the true value of that interest;

b.    the difference between the price at which it or they acquired their interest in the CNP stapled security and the market price that would have prevailed but for the PWC Contravening Conduct;

c.    alternatively, the difference between the price at which it or they acquired their interest and whatever is ‘left in hand’ (with respect to the applicant being all CNP stapled securities purchased during the Relevant Period) (with respect to the applicant as identified in the particulars subjoined to paragraph 69) or has been realised upon a sale modified to take into account any part of the movement in the market price of the CNP stapled security which did not ‘result from’ the PWC Contravening Conduct;

d.    in the case of some Group Members, in addition to (a), (b) and (c) the loss of the opportunity to achieve a reasonable rate of return on the monies used to purchase the interest in CNP stapled securities.

Further particulars of the applicant’s loss will be provided after the filing of evidence on which the applicant relies.

34    Counsel for PwC have criticised that part of the proposed further amended pleading as providing no explanation of the basis on which PwC’s First Contravening Conduct is said to have caused the applicants and the Group Members to have suffered loss.

35    In the first place, it is pointed out that there is no allegation that the PwC Preliminary Final Report Compliance Representation was communicated to Kirby or any of the Group Members. Likewise, Counsel for PwC contended, there is no allegation of reliance by Kirby or any of the Group Members on the PwC Preliminary Final Report Compliance Representation. By contrast, such an express allegation of reliance is made in, for example, paragraph 72 of the proposed further amended statement of claim in the CNP proceeding in relation to representations alleged to have been made by the Centro respondents. That paragraph alleges;

72    Further (or in the alternative) to paragraphs 70 and 71, in the decision to acquire interests in CNP stapled securities the applicant and some Group Members relied directly on each of:

a.    the Second Financial Report Compliance Representation;

b.    the September Debt Representation;

c.    the DPS Forecast Representation;

d.    the Implied Financial Report Compliance Representation;

e.    the Listing Rule Compliance Representation.

36    Counsel for the applicants has acknowledged that it will be necessary to rectify an oversight in pleading paragraph 87 set out above so that it reads;

By reason of the PWC First Contravening Conduct, the applicant and Group Members were persons who suffered loss, injury or damage because of a contravention of s 12 of the FTA. [Emphasis added to additional words]

37    The applicants sought to meet PwC’s more fundamental criticism by pointing to the particulars subjoined to paragraph 86 of the proposed further amended statement of claim in the CNP proceeding which recite that specified actions of CNP and its Board would not have been performed “but for the PwC First Contravening Conduct”. Counsel for the applicants then suggested that, in a representative action like the CNP proceeding and the CER proceeding, it is not necessary for a link between the contravening conduct and the loss suffered by each particular group member to be articulated in the statement of claim. It is sufficient, Counsel contended, for that link to be pleaded or particularised after a specific group member or specific group members have been selected as representative of the group or a section of the group which has suffered damage in a specified way.

38    More substantively, Counsel for the applicants contended that the PwC First Contravening Conduct caused representations to be made by CNP and CER about “debt and compliance with financial standards which caused the shares to trade above their true value.” In my view, that case is sufficiently pleaded, as a matter of form, in paragraph 86 of the proposed further amended statement of claim in the CNP proceeding which is set out at [33] above and paragraph 87, subject to the proposed amendment noted at [36] above. Those paragraphs, I consider, allege, with appropriate particulars, the suffering of loss and damage “by reason of” the PwC First Contravening Conduct. I have formed that view in light of the assurance by Counsel for the applicants in his written submissions that “all claims based on … the PWC First Contravening Conduct are indirect (and no individual case of direct reliance will be pleaded)”. I should also indicate that I have confined my consideration to whether the relevant parts of the proposed further amended statements of claim, in form, afford PwC an opportunity of meeting the case against it; see Banque Commerciale S.A. En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279, at 286. I say nothing about the applicants’ entitlement to relief in the event that the relevant allegations against PwC are made out. Accordingly, there should be leave to the applicants in each of the CNP proceeding and the CER proceeding, further to amend the amended statement of claim in each proceeding to include the allegations discussed above related to the PwC Preliminary Final Report Representations.

(c)    The September PwC Audit Representations

39    In the proposed further amended statement of claim in each of the CNP proceeding and the CER proceeding it is alleged that certain representations were made to CNP and CER respectively in September 2007. Those representations are respectively called, compendiously, the “September PWC CNP Audit Representations” and the “September PWC CER Audit Representations”. For example, paragraph 88 of the proposed further amended statement of claim in the CNP proceeding is in these terms;

88    On or about:

a.    6 September 2007 PWC represented to CNP; further or alternatively

b.    18 September 2007 at the time that CNP released its Annual Report, PWC represented to, inter alia, the market of investors and potential investors in CNP;

that or to the effect that:

i.    PWC had conducted an independent audit, in accordance with Australian Auditing Standards, of CNP’s financial report for the year ended 30 June 2007;

ii.    PWC had signed the audit report on CNP’s financial report for the year ended 30 June 2007;

iii.    PWC had tested that the information in the Annual Report was derived from and consistent with CNP’s financial report for the year ended 30 June 2007;

iv.    PWC had examined on a test basis evidence supporting disclosures in the Annual Report that were not directly derived from CNP’s financial report for the year ended 30 June 2007;

v.    PWC had formed the opinion that CNP’s financial report for the year ended 30 June 2007 complied with AASB 101 and/or AASB 1039;

vi.    PWC had exercised reasonable skill and care in undertaking the audit of CNP’s financial report and in giving its auditor’s opinion as to the concise report; and

vii.    PWC had reasonable grounds, based on an adequate examination of the books and records of CNP, for the opinions referred to in (vi) and (vi) above.

(September PWC CNP Audit Representations).

40    The first criticism directed on behalf of PwC to this part of each proposed further amended statement of claim in the CNP proceeding and the CER proceeding goes to a matter of form. As articulated in PwC’s written submissions it is that;

This compendious reference in each proceeding to representations made to different persons at different dates causes difficulties when it comes to pleading the consequences said to flow from those representations.

41    Each of the PwC September Audit Representations is alleged to have contravened s 12 of the FTA and that conduct is compendiously described as the “PwC Annual Results Contravening Conduct”. It is then pleaded in, for example, paragraph 91 of the proposed further amended statement of claim in the CNP proceeding;

The applicant and some Group Members (Second Group Members):

a.    relied directly upon the PWC Annual Results Contravening Conduct in making a decision whether the [sic. scil to] purchase CNP stapled securities [sic. scil at] the prevailing market price at the time of purchase; and

b.    would not have purchased CNP stapled securities[sic. scil at] the prevailing market price at the time of purchase:

i.    but for the PWC Annual Results Contravening Conduct; and

ii.    in the event that the Second Group Members had been aware that PWC’s audit of CNP’s financial report for the year ended 30 June 2007 had not been completed in accordance with Australian Auditing Standards and/or PWC had not exercised reasonable skill and care in undertaking the audit of CNP’s financial report and in giving its auditor’s opinion as to the concise report and/or PWC did not have reasonable grounds for the opinions referred to in paragraph 88(v) and (vi).

42    That allegation and its counterpart in the proposed further amended statement of claim in the CER proceeding, Counsel for PwC have pointed out, are each predicated on “direct reliance” by the applicant and some unidentified Group Members on conduct said to have consisted of representations made at different times to different people. However, there is no allegation that the representations of 5 and 6 September 2007 were made to the applicant or any Group Members.

43    Counsel for the applicants has contended that these criticisms are based on a misunderstanding of the relevant part of the proposed further amended statement of claim in each proceeding. What is intended, it has been submitted, is an allegation that PwC made certain representations to CNP and CER on 6 September 2007 which, as far as they were express, were embodied in PwC’s written audit reports of that date. Those written reports were respectively included in the CNP and CER Annual Reports and released to the Australian Stock Exchange on 18 September 2007. Thus, the representations alleged to have been made on different dates were the same representations. Counsel for the applicants expressly disavowed any allegation of the making by PwC of any representation on 5 September 2007.

44    In these circumstances, it is appropriate to allow the insertion in the further amended statement of claim in each of the CNP proceeding and the CER proceeding of a paragraph to the effect of paragraph 91 set out at [41] above. However, that leave should only be granted on condition that the applicant specify by a further amendment to the body of the paragraph or by appropriate particulars subjoined thereto, the acts or facts constituting direct reliance by the applicant and the Second Group Members on the PwC Annual Results Contravening Conduct.

The Vlachos Proceeding

45    As already noted at [3] above, the applicants in the Vlachos proceeding have moved for leave to add PwC as a fifth respondent in that proceeding and for leave further to amend their amended statement of claim to include allegations appropriate to charge the added respondent.

46    PwC opposes the grant of leave to join it as a respondent in the Vlachos proceeding on the ground that the proceeding has been brought on behalf of an “open class” of persons who invested in CNP and CER “at some time between 5 April 2007 and February 2008” and who “suffered loss and damage by, or resulting from, the conduct of the respondents or any of them.” It is then pointed out that the conduct imputed to PwC in the proposed second amended statement of claim in the Vlachos proceedings is alleged in these terms;

39G.    On or about 3 August 2007 PwC represented to each of CNP and CER that or to the effect that:

(a)    PwC’s audit was largely complete;

(b)    CNP’s preliminary final report, subject to certain irrelevant matters:

(i)    gave a true and fair view of CNP’s financial position and performance;

(ii)    was appropriate for approval by the CNP Audit Committee and the Boards of CPL and CPT Manager;

(c)    CER’s preliminary final report, subject to certain matters unrelated to the level and currency of CER’s interest-bearing liabilities:

(i)    gave a true and fair view of CER’s financial position and performance; and

(ii)    was appropriate for approval by the CER Audit Committee and the Boards of CRL and Centro MCS;

(d)    the audit that was “largely complete” as at 3 August 2007 had been undertaken in accordance with Australian Auditing Standards;

(e)    PwC had exercised reasonable skill and care in forming the opinions referred to in “b” and “c” above.

(“the August PwC Representations”).

47    It is next alleged in paragraphs 39J and 39K that the making of the August PwC Representations was misleading or deceptive or likely to mislead or deceive and that, but for them, CNP and CER would not have made the statements which each of them made in August 2007. The allegations against PwC are then taken up in paragraphs 80A and 80B of the proposed second amended statement of claim in the Vlachos proceeding which recite;

80A.    Each of:

(a)    the August PwC Representations;

(b)    the September PwC CER Representations; further or alternatively

(c)    the September PwC CNP Representations;

was:

(i)    within the meaning of the Corporations Act;

(A)    conduct in this jurisdiction; and

(B)    conduct in relation to financial products, being CNP Securities and CER Securities as the case may be; further or alternatively

(C)    conduct in relation to financial services, being conduct in relation to the making of statements of opinion that could reasonably be regarded as being intended to influence persons in making a decision in relation to acquiring or disposing of interests in CNP Securities or CER Securities within the meaning of s.766B, namely the release of:

1.    in the case of the August PwC Representations – the CNP and CER preliminary final reports to the ASX pursuant to Listing Rule 4.3A; and

2.    in the case of the September PwC CER Representations – the release of the CER financial report for the year ended 30 June 2007; and

3.    in the case of the September PwC CNP Representations – the release of the CNP financial report for the year ended 30 June 2007;

(ii)    within the meaning of the ASIC Act – conduct, in trade or commerce, in relation to or in connection with the supply of financial services as set out in (i)(C) hereof;

(iv)    within the meaning of the FTA – conduct:

(A)    in trade or commerce

(B)    in connection with the supply of services.

80B.    By reasons of the matters set out in paragraphs 39K and 80A, by making the August PwC Representations PwC:

(a)    in this jurisdiction engaged in conduct, in relation to a financial product or a financial service, that was misleading or deceptive or likely to mislead or deceive in contravention of s.1041H of the Corporations Act;

(b)    made a statement in contravention of s.1041E of the Corporations Act;

(c)    in trade or commerce engaged in conduct in relation to financial services that was misleading or deceptive or likely to mislead or deceive in contravention of s.12DA of the ASIC Act;

(d)    in trade or commerce, in connection with the supply of financial services, falsely represented that the services were of a particular standard or quality in contravention of s.12DB of the ASIC Act;

(e)    in the alternative to (a) to (d) above – in trade or commerce, in connection with the supply of services:

(i)    falsely represented that the services were of a particular standard or quality; further or alternatively

(ii)    made a representation that was false, misleading or deceptive in material particulars,

in contravention of s.12 of the FTA;

(together and severally, “PwC’s August Contraventions”).

48    In essence, PwC contends that since some of the undifferentiated applicants and Group Members in the Vlachos proceedings have claims, some of which came into existence before the alleged making of any representations or other conduct attributed to PwC by the proposed second amended statement of claim, the requirements of s 33C(1) cannot be satisfied in respect of a proceeding against PwC by all the existing applicants on behalf of all the existing Group Members. Counsel for the Vlachos applicants has contended, in response, that “claims”, in s 33C(1), is wider than “claims for damages” and includes claims for injunctive or declaratory relief.

49    I am prepared to assume that the notion of a “claim” in s 33C extends to a claim for injunctive, declaratory or other equitable relief. That much is made clear by s 33C(2)(a)(i) which allows the relief sought in a representative proceeding to consist of, or include, “equitable relief”. However, for the reasons explained at [19]-[21] above, a bare assertion that an applicant or a group member seeks a declaration against a particular respondent does not entail that such an applicant or group member “has claims” against that respondent within the meaning of s 33C(1). The power conferred on this Court by s 21 of the Federal Court Act to make binding declarations of right or the fact that various statutes, including s 163A of the Trade Practices Act 1974 (Cth), allow a declaration to be sought by “a person” or “any person” does not enliven a discretion in this Court to grant a declaration unsupported by any right or interest in the applicant. This much, I consider, is implicit in the supposition of Lindgren J in ACCC v Giraffe World (supra) that, for the purposes of s 33C, the claims, including claims for declarations, must be recognised by the law and “it is not a sufficient condition of the existence of a claim that a claim has been ‘made’, ‘asserted’ or ‘threatened’”. It also finds support in his Honour’s earlier observation in the same case which is quoted at [20] above.

50    The analysis which I prefer is not contradicted by the recent decision of a Full Court in this Court in Allphones Retail Pty Ltd v Weimann [2009] FCAFC 135 to which I have been referred by Counsel for the Vlachos applicants. In that case, the group members included two classes of franchisees, those in Group A who had already exercised a right of renewal and, those in Group B whose time for renewal had not yet occurred. Those in the latter class sought declarations against the same respondent franchisee and were held to have “claims” for the purposes of s 33C. However, the interest of those group members in obtaining such a declaration as a platform for other relief, as and when their rights of renewal accrued, was obvious. The same cannot be said of an applicant or Group Member in the present case who acquired CER or CNP securities before August 2007 and who ex hypothesi can never have an enforceable right against PwC.

51    For the reasons explained at [11] and [14] above and amplified in this discussion of the Vlachos proceedings, I have concluded that I am bound to apply the requirement identified by the Full Court in Philip Morris that every applicant and every represented party have a claim against all respondents. I accept that it need not be the same claim but, in this case, any applicant or Group Member who acquired CER securities or CNP securities between 5 April 2007 and 7 or 9 August 2007, as the case may be, and did not subsequently purchase any more CER securities or CNP securities has, for the reasons explained above, no claim against PwC. It follows that the motion by the Vlachos applicants to add PwC as a respondent to the Vlachos proceeding must be refused.

Conclusion

52    For the reasons which I have endeavoured to explain, the motions for leave to join Nicholas Stott as an applicant and PwC Securities as a respondent in the CER proceeding and to join PwC as a respondent in the Vlachos proceeding will be refused. There will be leave to the applicant in each of the CNP proceeding and the CER proceeding to join PwC as a respondent to each of those proceedings and further to amend the respective further amended statements of claim to include allegations appropriate to charge the added respondent, PwC. As well, there will be leave otherwise further to amend each further amended statement of claim to conform with the draft second further amended statement of claim exhibited to each affidavit of Martin James Hyde sworn 22 January 2010 and with these reasons. The costs of all parties of and incidental to each motion will be reserved.

Associate:

Dated:    15 October 2010