FEDERAL COURT OF AUSTRALIA

Meaden v Bell Potter Securities Ltd (No 6) [2013] FCA 1176

THE COURT ORDERS THAT:

1.    Save for the orders made on 15 August 2013, the interlocutory application filed 19 April 2013 be dismissed.

2.    The matter be listed for further directions on 22 November 2013 at 9:30 a.m.

3.    The applicants pay the respondent’s costs of the interlocutory application, as agreed or taxed, such costs to be paid forthwith.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

INTRODUCTION

1        On 15 August 2013, I made orders (Meaden v Bell Potter Securities Ltd (No 5) [2013] FCA 821) in respect of prayers 4, 5 and 6 contained in an interlocutory application filed by the applicants on 19 April 2013 and heard on 19 July 2013 (“interlocutory application”). Those orders concerned the joinder of an additional applicant together with leave to file affidavit evidence on its behalf (prayer 6); leave for three applicants to discontinue as applicants on certain terms (prayer 5); and leave for the applicants (other than the discontinuing applicants) to file an amended application and a second further amended statement of claim subject to those applicants paying the respondent’s costs thrown away by reason of those amendments (prayer 4). I remain reserved on prayers for relief 1 to 3, 7 and 8 contained in the interlocutory application. These reasons are concerned with the reserved prayers for relief.

BACKGROUND

2        On 27 April 2012, I made an order (Meaden v Bell Potter Securities Limited (No 2) [2012] FCA 418) pursuant to s 33N of the Federal Court of Australia Act 1976 (Cth) (“FCA Act”) that this proceeding no longer continue under Pt IVA of the FCA Act as a representative proceeding.

3        On 8 June 2012, Emmett J refused an application for leave to appeal the s 33N order: Meaden v Bell Potter Securities Limited (No 3) [2012] FCA 739. At the conclusion of his reasons, his Honour said (at [15]):

It will always be open to the applicant, or to another claimant, to seek to have the proceeding reconstituted as a proceeding under Part IVA after the criticisms that have been made of the statement of claim and the present constitution of the proceeding have been addressed.

4        Section 33P of the FCA Act provides:

Where the Court makes an order under section 33L, 33M or 33N that a proceeding no longer continue under this Part:

(a)    the proceeding may be continued as a proceeding by the representative party on his or her own behalf against the respondent; and

(b)    on the application of a person who was a group member for the purposes of the proceeding, the Court may order that the person be joined as an applicant in the proceeding.

5        On 1 November 2012, I made an order joining 43 persons, being group members to which this proceeding related, in addition to Ms Jillian Annetta Meaden, as applicants in this proceeding, and an order joining 25 other persons, including Mr Brett Tyack, as applicants in this proceeding; and on 9 November 2012 I granted all applicants leave to file and serve a further amended originating process and a further amended statement of claim in the forms exhibited for that purpose.

6        Henceforth the proceeding has continued as a multi-applicant proceeding. The applicants (other than the discontinuing applicants) have served their lay evidence in chief.

THE INTERLOCUTORY APPLICATION

7        On 19 April 2013, the applicants filed and served the interlocutory application together with a supporting affidavit of Mr Van Angelo Moulis sworn the same day. As indicated in [1] above, I heard this interlocutory application on 19 July 2013. Prayers 1 and 2 sought the following interlocutory orders:

1.    An order pursuant to section 23 and/or 33ZF and/or 37P(2) of the Federal Court of Australia Act 1976 (Cth) (Act) and/or FCR 1.21(a) and/or 1.31(2) and/or 1.32 that:

a.    order 1 of the orders of the Court made on 27 April 2012 (which provided that … this proceeding, from that date, no longer continue under Part IVA of the Act as a representative proceeding) be vacated so that the consequences of the order (as set out in section 33P) no longer have any effect;

b.    further, or in the alternative to (a), that this proceeding continue as a representative proceeding under Part IVA of the Act;

c.    that each present applicant (other than the Forty-Seventh applicant (Brett Tyack)) be given leave to discontinue as applicants, alternatively an order pursuant to FCR 9.08 that they cease to be parties, and those applicants (other than the Fortieth Applicant (Chagall International Pty Ltd ACN 084 160 583), Sixty-Fourth Applicant (Mistyglare Pty Ltd ACN 089 670 888) and Sixty-Eighth Applicant (Lee Miller)) be regarded for all purposes as group members represented by the remaining applicant (Brett Tyack) in the representative proceeding;

d.    that the applicant (Brett Tyack) have leave to file the version of the amended application and second further amended statement of claim which comprises annexures VAM-4 and VAM-5 to the affidavit of Van Angelo Moulis sworn 19 April 2013.

2.    Subject to further order, an order pursuant to section 33ZF and/or 37P(2) of the Act, that the whole of the claim of the applicant (Brett Tyack) and the questions identified in schedule “A” to this interlocutory application be determined at an initial hearing of this representative proceeding on a date to be fixed following opt out.

8        Prayer 3 sought directions for the filing of a defence to the second further amended statement of claim and for the filing of the evidence to be relied upon at the initial trial.

9        In the alternative to prayers 1 to 3, prayer 7 sought the following interlocutory order:

7.    An order pursuant to FCR 30.01 and/or section 37P(2) of the Act and/or FCR 1.32 that the questions identified in schedule “B” to this interlocutory application be determined separately and before any other issue in this proceeding.

10        Prayer 8 sought directions for the filing of a defence to the second further amended statement of claim and for the filing of evidence to be relied upon at the hearing of the separate questions.

11        The respondent opposes the orders sought in prayers 1 and 2 and, in the alternative, prayer 7, of the interlocutory application.

“Reconstitution” as a representative proceeding

12        At the forefront of its opposition to the orders sought in prayer 1 to the interlocutory application, the respondent submitted that the Court, having previously made an order under s 33N on 27 April 2012, now has no power to reconstitute the proceeding, or to convert it into a representative proceeding under Pt IVA of the FCA Act.

13        Secondly, the respondent submitted that even assuming itself to have the power, as a matter of discretion, the Court should not vacate the s 33N order made well over a year ago, if the only basis on which it were to do so would be to permit the applicants to achieve a procedural outcome that they could not otherwise achieve.

14        The applicants, on the back of what Emmett J said in refusing an application for leave to appeal the s 33N order (see [3] above), while accepting that there is no power which expressly contemplates the transmogrification of an inter partes proceeding into a Pt IVA proceeding and assuming s 33ZF has no application given the proceeding is no longer an extant Pt IVA proceeding, points to a variety of sources of power, generally plenary in nature, which they contend permit the orders sought in prayer 1 of the interlocutory application, effecting the reconstitution or conversion to a representative proceeding. They refer to ss 23, 33ZF (notwithstanding the assumption above) and 37P(2) of the FCA Act, and rr 1.21, 1.31(2) and 1.32 of the Federal Court Rules 2011 (“FCR”). According to the applicants, there is nothing expressly within Pt IVA to prevent a “conversion” of the type contemplated and, as was explained by Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ in Wong v Silkfield Pty Ltd (1999) 199 CLR 255 at [11]: “Pt IVA is not to be read by making implications or imposing limitations not found in the words used; this is so even if the evident purpose of the statute is to displace generally understood procedures”.

The issue of power

15        In response to the various sources of power relied on by the applicants, the respondent says:

(1)    The power conferred by s 23 is not an unlimited or unfettered power that permits the Court to ignore other limitations that are imposed upon granting relief. Those other limitations include, in this case, the provisions of Pt IVA itself. Section 23 is not a plenary power providing a panacea for any perceived procedural or substantive ill. It does not supply power to do what the applicants ask the Court to do here.

(2)    Section 33ZF of the FCA Act has no application to this proceeding. By its express language it applies to “any proceeding … conducted under this Part”. The reference to “this Part” is a reference to Pt IVA of the FCA Act. This proceeding ceased to be conducted under that Part upon the making of the s 33N order on 27 April 2012.

(3)    The power under s 37P to give directions about practice and procedure does not permit the Court to override the statutory limitations inherent within Pt IVA itself. Like s 23 of the FCA Act, it does not empower the Court to grant the relief sought here.

(4)    Rule 1.21 does not assist for two reasons:

(a)    First, it cannot permit the Court to override the statutory limitations inherent within Pt IVA itself; and

(b)    secondly, it applies only where “the procedure is not prescribed by the Act”, and in this case, the procedure is prohibited by the scheme of Pt IVA.

(5)    Rules 1.31 and 1.32 also do not assist the applicants, and do not permit the Court to override the statutory limitations inherent within Pt IVA itself.

16        In support of the orders sought in prayer 1 of the interlocutory application, the applicants referred to a number of authorities, which allowed an existing proceeding in the Court not filed as a proceeding under Pt IVA of the FCA Act to be converted into such a proceeding.

17        In Finance Sector Union of Australia v Commonwealth Bank of Australia (1999) 89 FCR 417, O’Connor J came to the conclusion that there was “no jurisdictional impediment” to making an order (at [19]) as Pt IVA was not a complete code in itself. Her Honour relied on the Second Reading Speech when Pt IVA was introduced into the FCA Act, which emphasised “the legislative intent of creating an efficient and effective procedure to deal with multiple claims” (at [13]).

18        This decision was followed in Sreika v Cardinal Financial Securities Limited [2000] FCA 1647, where what was described as a “jurisdictional argument” (presumably, more accurately, an argument as to power) was raised. Tamberlin J followed Financial Sector Union and held (at [11]):

I do not think that the Court is deprived of jurisdiction by the existence of Part IVA and the requirements of ss 33C or 33H from granting leave to make such an amendment. To dismiss the present proceeding entirely and to require a fresh action to be commenced, rather than to permit an amendment, involves unnecessary delaying expenses and is an unduly rigid approach. The section is not concerned with whether there is an existing proceeding on foot or how the requirements are satisfied, either as a consequence of amendment or otherwise. Furthermore, to preclude the Court from granting leave to file an amended application in compliance with Part IVA may in some circumstances prove highly inconvenient and inappropriate ..I can identify no useful purpose which would be served by such a limitation especially in circumstances where the requirements of s 33H can be satisfied by the filing of a fresh application. There is no reason why a judge should not have a discretionary power to grant leave in appropriate circumstances. Considerations of procedural efficiency and economy support a contrary conclusion to that advanced by the respondents and this is consistent with the underlying principle leading to the enactment of Part IVA.

(Emphasis added.)

19        In Watson v AWB Limited [2007] FCA 1367, Gyles J doubted the correctness of the decisions in Financial Sector Union and Sreika, but was not prepared to hold that the decisions were “clearly wrong” (at [6]). His Honour permitted the conversion of an existing proceeding into a Pt IVA proceeding.

20        In Wingecarribee Shire Council v Lehman Brothers Australia Limited (No 3) [2010] FCA 747, Rares J made orders converting an existing proceeding into a Pt IVA proceeding. Rares J noted the decision of Gyles J in Watson v AWB Limited but declined to engage in any reconsideration of the authorities (at [5]). His Honour observed (at [6]):

Section 33C(1) enables proceedings to be commenced under Part IVA. The section does not require that any proceedings brought under the Part must always originate as proceedings under it. There is a reasonable basis to consider that the section is intended to be expansive, rather than constrictive, of the Court’s powers. It is quite inappropriate to read provisions conferring jurisdiction or conferring powers on the Court by making implications or imposing limitations that are not found in the express words: Owners of ‘Shin Kobe Maru’ v Empire Shipping Co Inc (1994) 181 CLR 504 at 421 ... In addition, the Court has powers to permit the amendment of proceedings. Those powers of amendment are not displaced by anything expressly said in Part IVA.

(Emphasis added.)

21         The applicants acknowledge that the present proceeding is slightly different in that it commenced as a Pt VIA proceeding, was subsequently the subject of an order under s 33N and now an order is sought (re)constituting it as a Pt IVA proceeding. They were the same facts which came before Lindgren J in Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd (1999) 95 FCR 302 which, the respondent says, correctly, is the only authority directly on point. At [219]–[221], his Honour said:

The ACCC submits that circumstances have changed since 24 July 1998 and that it is appropriate now that the proceeding be again a representative proceeding under Pt IVA of the FCA Act.

In my opinion, I do not have power to make the order sought. There is no provision in the FCA Act expressly permitting me to do so. Part IVA contemplates only the commencement of proceedings as representative proceedings: cf ss 33A (definitions of “group member”, “representative party” and “representative proceeding”), 33C, 33D, 33G, 33H and 33K. In particular, s 33A defines “representative proceeding” as “a proceeding commenced under section 33C”. Of course, proceeding NG 421 of 1998 satisfies the literal terms of that definition. But in my view, the order under s 33N made on 24 July 1998, unless and until set aside, has the effect that the proceeding can no longer be regarded as being within the definition. An order achieving the result now sought by the ACCC would be inconsistent with my order of 24 July 1998.

Section 33P … contemplates as the only relevant “consequences of [an] order that [a] proceeding not continue under [Pt IVA]”, that if the proceeding is to continue at all, it is to continue otherwise than under Pt IVA.

22        The applicants point out that even leaving aside subsequent amendment to both the FCA Act and the FCR, Financial Sector Union and Sreika both disavowed the construction relied on by Lingdren J that Pt IVA is a code limited to proceedings commenced as a representative proceeding. Similarly, as Rares J held in Wingecarribee Shire Council, there is nothing in the terms of Pt IVA which limited the application before him nor are the Court’s powers of amendment circumscribed by the terms of Pt IVA (at [6]).

23        In any event the applicants submit, what is presently before the Court is a civil proceeding in the General Division of the Court. The fact that it was previously under Pt IVA but is no longer, does not give its current status a different character than an ordinary civil proceeding in the General Division of the Court amenable to the same raft of orders that were available to the Court in Financial Services Union, Sreika, AWB and Wingecarribee Shire Council.

24        The applicants point to the fact that the interlocutory order sought in para a. of prayer 1 of the interlocutory application actually seeks the vacation of the s 33N order made on 22 April 2012. I would regard this as an application to set aside the s 33N order pursuant to r 39.05, which if made, would, according to the applicants, enable the Court to then make an order under s 33ZF. They referred to Delta Metallics Pty Ltd v King [2012] FCA 1119 where Middleton J eschewed any need to establish exceptional circumstances in setting aside an interlocutory order. Rather, his Honour was concerned that (at [9]):

[It] needs to be done on a proper juridical basis. Again, it will depend on all the circumstances, which will include – relevantly in this Application – the actions of [the first respondent], and the circumstances of any prejudice that may arise in relation to the party that has an order or judgment in its favour.

25        According to the applicants, there can be no prejudice to the respondent from an order setting aside the order of 27 April 2012 (which was procedural in nature and given that it has been compensated already with a costs order), if in its place is an order in terms of prayer 1 of the interlocutory application and the Court is otherwise satisfied that such orders will be consistent with and meet the requirements of the overarching purpose provided for in s 37M of the FCA Act.

26        For its part, the respondent submits that the applicants’ attempt to circumvent the limitation arising by virtue of the s 33N order recognised by Lindgren J in Giraffe World by seeking to “vacate” the s 33N order should not be permitted. The s 33N order was appropriate when made well over a year ago. The applicants sought leave to appeal from that order, and leave was refused. The various changes of circumstance that have occurred since do not warrant an attempt to achieve, by a back door, what the applicants cannot achieve directly. There is no basis to disturb that order.

27        According to the respondent, the present application to reconstitute the proceeding is also inconsistent with Multiple Funds Management Ltd v P Dawson Nominees Pty Ltd (2007) 164 FCR 275 at [142]. The Full Court held that a group definition that allowed a person to take a positive step of “opting in” after the commencement of the proceeding would be inconsistent with one or more of ss 33C, 33H, 33J and 33K. In the present case, unless the proceedings are reconstituted with the same representative applicant, namely Ms Meaden, and the same closed class as existed at the start of the proceedings (or at least one with only group members who were group members when the proceedings commenced), then the proceedings will not meet the requirements of Pt IVA for a closed class proceeding in the manner required as described by the Full Court in Multiplex. The new proposed second further amended statement of claim in Annexure “VAM-5” to Mr Moulis’ 19 April 2013 affidavit defines the group members as: “the persons identified in Schedule A”. There is in fact no Schedule A to Annexure “VAM-5” but it is plain that the group is different from the group originally defined in the original application and statement of claim; see the Court’s first judgment: Meaden v Bell Potter Securities Limited [2011] FCA 136 at [7]. The Court cannot permit that in the case of a closed class.

28        In response to this last point, the applicants contend, with respect, that the respondent’s argument proceeds on a misapprehension as to what was in issue in Multiplex. According to the applicants, nothing in Multiplex prevents or is directed to the issue of a change of group members during the currency of a proceeding. Indeed, unsurprisingly, given that consent is not required to commence a representative proceeding on behalf of a group member (s 33E), various provisions within Pt IVA expressly contemplate changes in the composition of group members. The issue in Multiplex was directed not to the progress of a Part IVA proceeding or the question of conversion, but the quite distinct question of the necessary preconditions for a representative proceeding to be brought and, in particular, whether a particular criterion of group membership, subverted the underlying policy of Pt IVA. The Court rejected a criterion for group membership expressed in the pleading in such a way as to make it ambulatory (which would allow for a shifting composition of the group after commencement) that has nothing whatever to do with what is proposed here.

29        It may be correct to say, as the applicants do, that what Jacobson J, with whom French and Lindgren JJ agreed, said at [142] of Multiplex, namely, that under Pt IVA, a group definition that allowed a person to take a positive step to “opt in” after the commencement of the proceeding would be inconsistent with one or more of ss 33C, 33H, 33J and 33K and therefore was not permissible “has nothing to do with what is proposed here”, but had the proceeding remained a Pt IVA proceeding what is sought to be achieved by the suite of orders in prayer 1 of the interlocutory application, could not have occurred. It would not have been possible for Mr Brett Tyack, who was not a group member, as defined in para 2 of the originating application and statement of claim, to be appointed representative of the group. I will return to the relevance of this consideration below.

30        I am satisfied that I have the power under r 39.05 to vacate or set aside the s 33N order made on 27 July 2012 as sought in para a. of prayer 1 of the interlocutory application, but I am less confident that I have the power to make the further or alternative order sought in para b. of prayer 1. My lack of confidence in relation to para b. stems from what Lindgren J said in the extract from his Honour’s reasons in Giraffe World at [219]–[221] reproduced in [21] above, a case directly on point, and the doubts expressed by Gyles J in Watson v AWB Limited at [6].

31        However, as a matter of discretion, I would not be prepared to exercise the power to vacate or set aside the s 33N order made on 27 July 2012 if, as it would be, the effect of such vacation or setting aside was to reconstitute the proceeding with the same representative applicant, namely, Ms Meaden. Nothing has changed with respect to her unsuitability as the representative of the group and the applicants implicitly accept this by the order they seek in para c. of prayer 1. But the order that is sought in para c. of prayer 1 is not an order which I am satisfied I have the power to make and even if I am wrong in that regard, it is not an order which, in the exercise of my discretion, I would make.

32        There is no real doubt that once the proceeding is reconstituted as a proceeding under Pt IVA by the vacation or setting aside of the s 33N order, the power of the Court under s 33ZF of the FCA Act is enlivened. It relevantly provides:

(1)    In any proceeding (including an appeal) conducted under this Part, the Court may, of its own motion or on application by a party or a group member, make any order the Court thinks appropriate or necessary to ensure that justice is done in the proceeding.

(2)    …

33        There is also no real doubt that, pursuant to s 33ZF(1) of the FCA Act, the Court could appoint a group member, as defined in para 2 of the application and statement of claim, as representative of the group in place of Ms Meaden. Whether the Court would do so, in the exercise of its discretion, would depend on the suitability of the appointee as representative of the group and that would in turn depend on whether I was satisfied that the trial of the representative action will determine for all group members the common question or common questions. If I was of the view, as I was in the case of Ms Meaden, that there was such a lack of commonality that any determination of the proposed appointee’s claim would offer no real guide as to how the balance of the claims by the claimants would be determined were they to proceed to be determined individually, I would decline to exercise my discretion.

34        However, Mr Tyack is not a group member (as defined) and never has been. He was joined as an applicant when the proceeding ceased to be a Pt IVA proceeding and became a multi-applicant proceeding, but that joinder did not provide him with the status of a member of the group, the class of which had closed when the proceeding commenced. By the order sought in para c. of prayer 1, the applicants seek to overcome the impediment to Mr Tyack becoming a group member after the commencement of the proceeding. That is not something which, in my view, the Court has power to do, but if it has, as a matter or discretion, it should not be exercised.

35        For these reasons, insofar as the interlocutory application seeks the orders in prayer 1, it must be dismissed. As the orders in prayers 2 and 3 are consequential on the orders in prayer 1 being made, the interlocutory application must, to that extent as well, be dismissed.

The issue of discretion

36        If I am wrong in my view that I do not have the power to make the suite of orders sought in prayer 1 of the interlocutory application, the issue of whether, as a matter of discretion, I should make them squarely arises. I have already indicated in [34] above, that, if I am wrong on the issue of power, I would not, as a matter of discretion, appoint Mr Tyack as the representative in place of Ms Meaden. Ideally then, I would consider the issue of discretion on the basis that it is another group member that is sought to be appointed representative. The difficulty with such a task is that so many of the factors, relevant to the exercise of the discretion, pertain to the representative and, without knowing the identity of the representative and his or her particular involvement in the relevant events, it is not possible, without making assumptions, to properly address these factors, let alone take them into account. It would be totally inappropriate for me to make such assumptions.

37        The difficulty in coming to an informed decision on the discretion issue on an abstract basis, that is, without knowing the identity of the representative and his or her particular involvement in the relevant events, is self-evident and manifest in the following extracts from the applicants’ written submissions:

(1)    Written Outline dated 18 June 2013:

35    In terms of the exercise of discretion, the applicants rely on the following matters:

…

(e)    leaving aside the different way the claims are now pleaded, the proposed lead applicant and his claim do not suffer the issues outlined previously by the Court with [Ms] Meaden as the lead applicant; in particular, his purchases were between 19 March 2007 to 9 August 2007 (which encompass the period up to the Ninth Update);

(2)    Reply Submissions dated 18 July 2013:

44.    The direct reliance case pleaded by the applicant at SFASOC [21] will necessarily require the Court to determine whether Contravening Conduct took place and is sufficient to establish the utility of determining questions at an initial hearing (for the reasons explained in chief): however, additionally, the newly pleaded market based causation case is ignored in the [respondent’s submissions]. As foreshadowed above, in order to demonstrate: (a) the real utility of the determination of common issues raised by the proposed 2FASOC; and (b) why consideration of individual group member information is not necessary in order to determine the market-based causation case at the time of the initial trial, it is useful to descend to some detail as to how Mr Tyack will attempt to prove his market-based causation case.

…

59.    Insofar as the applicant, Mr Tyack, is concerned:

a.    he made six purchases between 19 March 2007 and 9 August 2007: SFASOC [11];

b.    in doing so he had received, and directly relied upon each of the Updates (or more particularly, the same misleading express and implied representations conveyed by each of the Updates) that had been provided up until the time of each purchase: SFASOC [21]; and/or

c.    the market for PGL Shares was inflated by each of the Updates (or more particularly, the same misleading express and implied representations conveyed by each of the Updates) that had been provided up until the time of each purchase: SFASOC [22].

60.    The allegations in (b) and/or (c) might be proved right or wrong but making findings on the allegations is both determinative of Mr Tyack’s claim and has obvious utility for the purposes of section 33ZB.

(Emphasis added.)

38        For these reasons, it would also be totally inappropriate for me to express a view as to how I might decide the discretion issue, assuming I have the relevant power, on what is no more than a hypothesis.

Separate questions

39        The separate questions, identified in Schedule “B” to the interlocutory application, that the applicants, by prayer 7, seek to have determined separately and before any other issue in this proceeding are:

(a)    Did the Respondent make the Value Representations as at the date publication of each of the First-Tenth Updates?

(b)    If yes to (a), were any one or more of the Value Representations misleading or deceptive or likely to mislead or deceive in contravention of:

(i)    section 12DA of the Australian Securities and Investment Commission Act 2001 (Cth) (“ASIC Act”); and/or

(ii)    section 1041H of the Corporations Act 2001 (Cth) (“Corporations Act”)?

(c)    Did the Respondent make the Modeling Representations as at the date of publication of each of the First-Tenth Updates?

(d)    If yes to (c), were any one or more of the Modeling Representations misleading or deceptive or likely to mislead or deceive in contravention of:

(i)    section 12DA of the ASIC Act; and/or

(ii)    section 1041H of the Corporations Act?

(e)    Did the Respondent make the Buy Recommendations Representations as at the date of publication of each of the First-Tenth Updates?

(f)    Did the Respondent make each or any of the First Implied Representations as at the date of publication of each of the First-Tenth Updates?

(g)    If yes to (f), was the representation in relation to paragraph 5(v) of the Second Further Amended Statement of Claim, a representation as to a future matter?

(h)    If yes to (g), did the Respondent have reasonable grounds for making the representation in paragraph 5(v) of the Second Further Amended Statement of Claim?

(i)    If yes to any of (f), were any one or more of the First Implied Representations misleading or deceptive or likely to mislead or deceive in contravention of:

(i)    section 12DA of the ASIC Act; and/or

(ii)    section 1041H of the Corporations Act?

(j)    In the event that the Respondent is found to have engaged in any Contravening Conduct at or around the dates of publication of any one or more of the First-Tenth Updates, what was the effect (if any) of the Contravening Conduct on the market price of PGL Shares?

(k)    If yes to (j) and that such effect was to inflate materially the market price of PGL Shares:

(i)    was the share inflation removed from the market price of PGL Shares by the end of the Relevant Period and:

(1)    if so, when?

(2)    if not, by what amount was the market price of PGL Shares still inflated at the end of the Relevant Period?

(ii)    what extraneous factors, if any, had a material effect on the market price of PGL Shares:

(1)    prior to the date during the Relevant Period when any share inflation was removed?

(2)    or, if not removed by the end of the Relevant Period, at the end of the Relevant Period?

40        There is no dispute between the applicants and the respondent as to the relevant principles which govern the exercise of the Court’s discretion under r 30.01. The applicants referred to the summary of those principles by Branson J in Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495 at [8] (dealing with the predecessor to r 30.01):

(a)    the term “question” in O 29 r 1 includes any question or issue of fact or law in a proceeding. The distinction in the rule between an “issue” and a “question” is the distinction between that which, when resolved, will result in an adjudication in favour of one party or the other, being an “issue”, and less decisive matters of dispute being “questions” (Landsal Pty Ltd (in liq) v REI Building Society (1993) 41 FCR 421 at 425; 113 ALR 643 at 647);

(b)    a question can be the subject of an order for a separate decision under O 29 r 2 even though a decision on such a question will not determine any of the parties’ rights (Landsal Pty Ltd (in liq) v REI Building Society at FCR 425; ALR 647);

(c)    however, the judicial determination of a question under O 29 r 2 must involve a conclusive or final decision based on concrete and established or agreed facts for the purpose of quelling a controversy between the parties (Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; 161 ALR 399; [1999] HCA 9 at [45]);

(d)    where the preliminary question is one of mixed fact and law, it is necessary that the question can be precisely formulated and that all of the facts that are on any fairly arguable view relevant to the determination of the question are ascertainable either as facts assumed to be correct for the purposes of the preliminary determination, or as agreed facts or as facts to be judicially determined (Jacobson v Ross [1995] 1 VR 337 at 341, referring to Nissan v Attorney-General [1970] AC 179 at 242-3; [1969] 1 All ER 629 at 663-4 per Lord Pearson; Bass v Perpetual Trustee at [53]);

(e)    care must be taken in utilising the procedure provided for in O 29 r 1 to avoid the determination of issues not “ripe” for separate and preliminary determination. An issue may not be “ripe” for separate and preliminary determination in this sense where it is simply one of two or more alternative ways in which an applicant frames its case and determination of the issue would leave significant other issues unresolved (CBS Productions Pty Ltd v O’Neill (1985) 1 NSWLR 601 per Kirby P at 606);

(f)    factors which tend to support the making of an order under O 29 r 2 include that the separate determination of the question may:

(i)     contribute to the saving of time and cost by substantially narrowing the issues for trial, or even lead to disposal of the action; or

(ii)    contribute to the settlement of the litigation (CBS Productions Pty Ltd v O’Neill per Kirby P at 607);

(g)    factors which tell against the making of an order under O 29 r 2 include that the separate determination of the question may:

(i)    give rise to significant contested factual issues both at the time of the hearing of the preliminary question and at the time of trial (GMB Research & Development Pty Ltd v Commonwealth [1997] FCA 934;

(ii)    result in significant overlap between the evidence adduced on the hearing of the separate question and at trial – possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding: GMB Research & Development Pty Ltd v Commonwealth; Arnold v Attorney-General for Victoria [[1995] FCA 727)]. This factor will be of particular significance if the Court may be required to form a view as to the credibility of witnesses who may give evidence at both stages of the hearing of the proceeding; or

(iii)     prolong rather than shorten the litigation (GMB Research & Development Pty Ltd v Commonwealth).

41        The applicants also referred to what was more recently said by Stone J in University of Sydney v ResMed Ltd (No 5) [2012] FCA 232 at [41] in the context of Pt VB of the FCA Act:

[41]    In general all issues in proceedings should be determined at the one time: Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141-142; Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495 at [7]. That is not invariably the case and in the exercise of its wide ranging powers of case management the Court may determine that consistent with s 37M of the Federal Court of Australia Act 1976 (Cth), the most efficient and inexpensive approach will be to separate some issues or questions for earlier determination: see Olbers v Commonwealth of Australia (No 3) [2003] FCA 651 at [8]. Sometimes the early determination of some issues will substantially narrow the issues to be determined at trial or even lead to partial or total settlement of the proceeding: Novartis Crop Protection Australasia Pty Ltd v Orica Australia Pty Ltd [2001] FCA 1013.

42        The applicants submitted that the resolution of the questions identified in Schedule “B” will either determine the proceeding wholly (in the event that the separate questions are determined adversely) or will provide all parties with additional certainty on all issues of liability (other than idiosyncratic causation issues which arise in the cases of individual applicants). For the reasons outlined in chief, the potential for savings are submitted to be both obvious and significant. None of the well-known inhibitions in ordering separate hearings are applicable here to any significant degree and, to the extent they are present, are very substantially outweighed in this vast multi-applicant proceeding by the benefits of separate determination.

43        In opposing this “alternative vehicle” of resolution, the respondent submits that the proposed separate questions raise so many issues of substance it is hard to see what practical benefit flows from a separate and preliminary determination of them. It further submits that it is clear from the nature of the proposed separate questions that all applicants would need to give evidence and be examined to resolve the proposed preliminary issues. If that is so, it is hard to see how any efficiency arises from deferring other issues on which they will then have to be later called and examined.

44        According to the respondent, if there are challenges to the credit of any applicants, who are then required to give evidence on a subsequent hearing, the obvious potential for inconvenience to the Court arises if a new judge is required to deal with the subsequent hearing.

45        The respondent referred to what Callinan and Kirby JJ recognised in Tepko Pty Ltd v Water Board (2001) 206 CLR 1 at [168]–[170] (with the concurrence of Gaudron J at [52]):

The attractions of trials of issues rather than of cases in their totality, are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory, particularly when the parties have, as here, had the necessity of making full preparation and the factual matters relevant to one issue are relevant to others, and they all overlap.

The second and related comment is this. A party whose whole case is knocked out on a trial of a preliminary or single issue, may suspect, however unjustifiably, that an abbreviated course was adopted and a decision reached in the court’s, rather than the parties’, interests.

Thirdly, there is an additional potential for further appeals to which the course of the trial on separate issues may give rise. Indeed, that could occur here were this appeal to be allowed and a retrial had in which the remaining issues of causation and damages were decided. Single-issue trials should, in our opinion, only be embarked upon when their utility, economy, and fairness to the parties are beyond question.

46        The respondent says that those warnings loom large in this case. Far from having demonstrated the utility, economy and fairness to the parties of the proposed separate questions, the applicants’ case for their separate and preliminary determination is based on unsubstantiated speculation of efficiency, and some perception of forensic advantage in their own interests.

47        For myself, I find the asserted advantages and disadvantages of embracing or not embracing this “alternative vehicle” somewhat elusive in the sense that it is difficult to be satisfied whether the asserted advantages would come home and beneficiate the resolution process; similarly whether the asserted disadvantages would burden that process; and that makes the weighing process that has to be undertaken exceedingly difficult to perform from what is, in many respects, an uninformed position.

48        I am not persuaded that the asserted advantages of savings in time and costs will, at this stage of the proceeding, be achieved, let alone outweigh the potential disadvantages of pursuing this “alternative vehicle”. My failure to be persuaded on this score is very much a function of two considerations, both of which are real: first, the proceeding as a multi-applicant proceeding has been on foot for over 12 months now and, second, because of that effluxion of time, all of the continuing applicants have filed all their lay evidence in chief.

49        The alternative orders sought in prayers 7 and 8 must also be dismissed.

CONCLUSION

50        Save for the orders make on 15 August 2013, the interlocutory application must be dismissed with costs.

Associate:

Dated:    14 November 2013