FEDERAL COURT OF AUSTRALIA

Southernwood v Brambles Limited (No 4) [2026] FCA 691

ORDERS

THE COURT DECLARES THAT:

A.    Between 16 November 2016 and 22 January 2017 (inclusive) the respondent (Brambles) contravened s 674 of the Corporations Act 2001 (Cth) by failing to tell the ASX that Brambles’ performance in CHEP NA since 1 July 2016 meant it was likely that in the year ending 30 June 2017 (FY17) Brambles would not achieve year-on-year Underlying Profit growth of between 9% and 11%, and integral reasons for this were that sales revenue in its US Pooled business would likely not meet budget in FY17 and direct costs were going up in US Pooled.

B.    Between 21 December 2016 and 22 January 2017 (inclusive) Brambles contravened s 674 of the Corporations Act by failing to tell the ASX that, in respect of sales revenue, Brambles’ performance in CHEP NA since 1 July 2016 meant it was likely that in FY17 Brambles would not achieve year-on-year sales revenue growth of between 7% and 9%, and an integral reason for this was that sales revenue in its US Pooled business would likely not meet budget in FY17.

C.    On 16 November 2016 Brambles contravened s 1041H of the Corporations Act, s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) and s 18 of the Australian Consumer Law (ACL) by:

(a)    repeating and thereby reaffirming its forecast of Underlying Profit growth in FY17 of between 9% and 11%; and

(b)    impliedly representing that Brambles had undertaken all necessary and reasonable investigations before making any statement or representation as to the state of its business and accounts and had satisfied itself on reasonable grounds following those investigations that the public statements were substantially accurate and not misleading or deceptive in any respect.

D.    On 21 December 2016 Brambles contravened s 1041H of the Corporations Act, s 12DA of the ASIC Act and s 18 of the ACL by:

(a)    maintaining (i.e., failing to correct, qualify or withdraw) its previous representation made on 18 August 2016 by which it forecast sales revenue growth in FY17 of between 7% and 9% and Underlying Profit growth in FY17 of between 9% and 11%; and

(b)    continuing to impliedly represent that Brambles had undertaken all necessary and reasonable investigations before making any statement or representation as to the state of its business and accounts and had satisfied itself on reasonable grounds following those investigations that the public statements were substantially accurate and not misleading or deceptive in any respect.

E.    For the purposes of:

(a)    section 1317HA of the Corporations Act, the second applicants suffered loss or damage which resulted from Brambles’ contraventions in A and B above;

(b)    section 1041I of the Corporations Act and s 12GF of the ASIC Act, the second applicants suffered loss or damage by the conduct of Brambles in C and D above; and

(c)    section 236 of the ACL, the second applicants suffered loss or damage because of the conduct of Brambles in C and D above.

THE COURT ORDERS THAT:

1.    The claims of the first applicant be dismissed.

2.    There be judgment for the second applicants against Brambles in the amount of $2,255.15, plus interest pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth) (FCA) for the period from 21 December 2016 up to and including the date of these orders in the amount of $1,282.07.

3.    The questions in the ‘Agreed Proposed List of Factual and Legal Issues to be Determined at the Initial Trial’, filed by the parties on 7 July 2022, be varied and answered as set out in Annexure A to these orders.

4.    Brambles pay the applicants’ costs of the proceeding save for the costs of and associated with the evidence of Mr David Lee.

5.    The costs in paragraph 4 to be assessed on a lump-sum basis in accordance with Part 4 of the Costs Practice Note (GPN-COSTS). For the avoidance of doubt, this case is a “large or complex” case as contemplated in [4.12] of the Practice Note.

6.    The parties are directed to endeavour to agree the appropriate timetable for:

(a)    the applicants to file and serve their Costs Summary in accordance with [4.10]-[4.12] of the Practice Note. A Costs Summary of up to 10 pages is appropriate; and

(b)    Brambles to file and serve its Costs Response in accordance with [4.13]-[4.14] of the Practice Note.

By no later than 4.00pm on 15 June 2026 the parties shall inform Chambers of the agreed timetable, or if they disagree, their respective positions and competing submissions as to the basis for their position (no more than half a page).

7.    All amounts paid into Court by or on behalf of Harbour Fund III, L.P. (Harbour) by way of security for Brambles’ costs, pursuant to the orders made on 2 October 2019, together with all interest accrued thereon, be released and repaid to Harbour.

8.    Pursuant to s 33ZB of the FCA, the following persons are bound by the above declarations and orders:

(a)    the applicants;

(b)    Brambles; and

(c)    all persons who meet the description of ‘Group Members’ in paragraph 1 of the applicants’ Amended Consolidated Statement of Claim filed on 25 June 2021, other than those persons who opted out of the proceeding in accordance with the orders made on 6 August 2021.

9.    The proceeding be listed for a case management hearing at 9.30 am on 22 June 2026, or on such later date as is agreed with Chambers, for the purpose of making orders in relation to the further conduct of the proceeding, including with respect to:

(a)    the lump-sum costs assessment referred to in orders 5 to 6 above; and

(b)    the resolution and/or determination of the claims of the Group Members consistent with the Court’s reasons published on 10 April 2026.

By no later than two days prior to the case management hearing, the parties shall file any proposed orders and submissions (no more than five pages) in relation to those matters.

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

ANNEXURE A

Capitalised terms in these questions have the meaning ascribed to them in the applicants’ Amended Consolidated Statement of Claim dated 25 June 2021 (ACSOC) and Brambles’ Defence to the ACSOC dated 10 September 2021.

References to paragraph numbers are to the reasons for judgment of the Honourable Justice Murphy dated 10 April 2026 (Southernwood v Brambles Ltd (No 3) [2026] FCA 418) (Reasons).

A.    Alleged August misleading or deceptive conduct contraventions

(1)    Whether, on 18 August 2016, at the time of releasing its financial report for FY2016 Brambles made:

(a)    the August Sales Revenue Forecast;

(b)    the August Underlying Profit Forecast;

(c)    the August Costs Representations;

(d)    the August Price Representation;

(e)    the August ROCI Forecast;

(f)    the Medium-Term Targets; or

(g)    the August Implied Representations.

Answer: Subject to the qualifications set out in [841] of the Reasons, on 18 August 2016, at the time of releasing its financial report for FY2016 Brambles made:

(a)    the August Sales Revenue Forecast;

(b)    the August Underlying Profit Forecast;

(c)    the August ROCI Forecast; and

(d)    an implied representation that Brambles had undertaken all necessary and reasonable investigations before making any statement or representation as to the state of its business and accounts and had satisfied itself on reasonable grounds following those investigations that the public statements were substantially accurate and not misleading or deceptive in any respect,

(hereafter, the August Representations). However, Brambles did not on that date make an implied representation that no information had come to the attention of Brambles that meant that there was any material risk that Brambles would not achieve the FY17 Guidance, FY19 ROCI Target, August Sales Revenue Forecast, August Underlying Profit Forecast or the August ROCI Forecast. Otherwise, unnecessary to answer.

(2)    Whether one or more of the August Representations were continuing representations, until 20 February 2017, otherwise 23 January 2017.

Answer: Each of the August Representations was a continuing representation until Brambles published information to the market that qualified, corrected or withdrew the representation. Brambles did not qualify, correct or withdraw the August Representations until it withdrew the FY17 Guidance on 23 January 2017 or until it withdrew the FY19 ROCI Target on 20 February 2017.

(3)    Whether the August Sales Revenue Forecast, August Underlying Profit Forecast, August Costs Representations, August Price Representation, August ROCI Forecast and Medium-Term Targets, were made in relation to future matters within the meaning of s 769C of the Corporations Act, s 12BB of the ASIC Act, and s 4 of the ACL.

Answer: The representations referred to in (a), (b) and (c) of the answer to Question 1 above (being the August Sales Revenue Forecast, August Underlying Profit Forecast and August ROCI Forecast) were made in relation to future matters within the meaning of s 769C of the Corporations Act, s 12BB of the ASIC Act, and s 4 of the ACL. Otherwise, unnecessary to answer.

(4)    If one or more of the August Sales Revenue Forecast, the August Underlying Profit Forecast, the August Costs Representations, the August Price Representation, the August ROCI Forecast and the Medium-Term Targets were made in relation to future matters, whether Brambles had reasonable grounds for making or maintaining that representation.

Answer: The applicants failed to establish that Brambles did not have reasonable grounds for making each of the August Representations at the time they were made. However, Brambles did not have reasonable grounds for continuing to maintain (i.e., not correcting, qualifying or withdrawing):

(a)    the August Underlying Profit Forecast (and the implied representation referred to in (d)) of the answer to Question 1 above in so far as it related to the August Underlying Profit Forecast) on and after 16 November 2016; and

(b)    the August Sales Revenue Forecast (and the implied representation referred to in (d)) of the answer to Question 1 above in so far as it related to the August Sales Revenue Forecast) on and after 21 December 2016.

(5)    In the event that the Court determines that Brambles made any or all of the August Representations, whether Brambles, by making or maintaining the August Representations, contravened s 1041H of the Corporations Act, s 12DA of the ASIC Act or s 18 of the ACL.

Answer: Brambles did not, by making the August Representations at the time they were made, contravene s 1041H of the Corporations Act, s 12DA of the ASIC Act or s 18 of the ACL, but it did contravene those provisions by continuing to maintain (i.e., not correcting, qualifying or withdrawing):

(a)    the August Underlying Profit Forecast (and the implied representation referred to in (d) of the answer to Question 1 above in so far as it related to the August Underlying Profit Forecast) on and after 16 November 2016; and

(b)    the August Sales Revenue Forecast (and the implied representation referred to in (d) of the answer to Question 1 above in so far as it related to the August Sales Revenue Forecast) on and after 21 December 2016.

B.    Alleged August continuous disclosure contraventions

(6)    During the Relevant Period, were any or all of:

(a)    Graham Chipchase;

(b)    Nessa O’Sullivan;

(c)    Buster Kennett;

(d)    Kim Rumph;

(e)    Matthew Lallatin;

(f)    Brett Hill; or

(g)    Carmelo Alonso-Bernaola Ruiz,

officers of Brambles within the meaning of s 9 of the Corporations Act and ASX Listing Rule 19.12.

Answer: During the Relevant Period, Buster Kennett, Kim Rumph and Carmelo Alonso-Bernaola Ruiz were officers of Brambles within the meaning of s 9 of the Corporations Act and ASX Listing Rule 19.12. Further, from 17 November 2016 until the end of the Relevant Period, Nessa O’Sullivan was an officer of Brambles within the meaning of s 9 of the Corporations Act and ASX Listing Rule 19.12. Otherwise, the applicants did not press these allegations; therefore, unnecessary to answer.

(7)    Whether the August Information was information that:

(a)    existed;

(b)    Brambles had (within the meaning of s 674(2) of the Corporations Act) by no later than 18 August 2016;

(c)    was generally available within the meaning of s 674(2)(c)(i) of the Corporations Act;

(d)    a reasonable person would expect, if it were generally available, to have a material effect on the price or value of Brambles Shares, within the meaning of s 674(2)(c)(ii) of the Corporations Act;

(e)    by reason of the matters in (a) to (d), Brambles was obliged to tell the ASX by no later than 18 August 2016.

Answer: As at 18 August 2016 the August Information did not exist. Otherwise, unnecessary to answer.

(8)    If the August Information existed, and was information that a reasonable person would expect to have a material effect on the price or value of Brambles Shares, whether it was information to which the exception in Listing Rule 3.1A applied.

Answer: Does not arise.

(9)    If the August Information existed, whether:

(a)    by failing to tell the ASX the August Information before 23 January 2017, or 20 February 2017, Brambles contravened ASX Listing Rule 3.1 and s 674(2) of the Corporations Act; and

(b)    if the answer to (a) is yes, the Court ought in its discretion relieve Brambles from liability for such contravention, pursuant to s 1317S of the Corporations Act.

Answer: Does not arise.

(10)    If Brambles was not obliged to tell the ASX the August Information, whether the Alternative August Information was information that:

(a)    existed;

(b)    Brambles had (within the meaning of s 674(2) of the Corporations Act) by no later than 18 August 2016;

(c)    was generally available within the meaning of s 674(2)(c)(i) of the Corporations Act;

(d)    a reasonable person would expect, if it were generally available, to have a material effect on the price or value of Brambles Shares, within the meaning of s 674(2)(c)(ii) of the Corporations Act;

(e)    by reason of the matters in (a) to (d), Brambles was obliged to tell the ASX by no later than 18 August 2016.

Answer: The applicants did not press these allegations; therefore, unnecessary to answer.

(11)    If the Alternative August Information existed, and was information that a reasonable person would expect to have a material effect on the price or value of Brambles Shares, whether it was information to which the exception in Listing Rule 3.1A applied.

Answer: Does not arise.

(12)    Whether, if Brambles was not obliged the tell the ASX the August Information, and if the Alternative August Information existed:

(a)    by failing to tell the ASX the Alternative August Information before 23 January 2017, or 20 February 2017, Brambles contravened ASX Listing Rule 3.1 and s 674(2) of the Corporations Act; and

(b)    if the answer to (a) is yes, the Court ought in its discretion relieve Brambles from liability for such contravention, pursuant to s 1317S of the Corporations Act.

Answer: Does not arise.

C.    Alleged October misleading or deceptive conduct contraventions

(13)    Whether, on 20 October 2016, at the time of releasing its 1Q17 Trading Update, Brambles made:

(a)    the October Revenue Representation;

(b)    the October Underlying Profit Representation;

(c)    the October Medium-Term Outlook Representation;

(d)    the October Costs Representation; or

(e)    the October Implied Representations.

Answer: On 20 October 2016, at the time of releasing its 1Q17 Trading Update, Brambles made:

(a)    the October Revenue Representation;

(b)    the October Underlying Profit Representation; and

(c)    an implied representation that Brambles had undertaken all necessary and reasonable investigations before making any statement or representation as to the state of its business and accounts and had satisfied itself on reasonable grounds following those investigations that the public statements were substantially accurate and not misleading or deceptive in any respect,

(hereafter, the October Representations). However, Brambles did not on that date make an implied representation that no information had come to the attention of Brambles that meant that there was any material risk that Brambles would not achieve the FY17 Guidance, FY19 ROCI Target, October Revenue Representation or the October Underlying Profit Representation. Otherwise, unnecessary to answer.

(14)    Whether one or more of the October Representations were continuing representations, until 20 February 2017, otherwise 23 January 2017.

Answer: Each of the October Representations was a continuing representation until Brambles published information to the market that qualified, corrected or withdrew the representation. Brambles did not qualify, correct or withdraw the October Representations until either 23 January 2017 or 20 February 2017.

(15)    Whether the October Revenue Representation, October Underlying Profit Representation, October Medium-Term Outlook Representation or October Costs Representation were made in relation to future matters within the meaning of s 769C of the Corporations Act, s 12BB of the ASIC Act, and s 4 of the ACL.

Answer: The representations referred to in (a) and (b) of the answer to Question 13 above (being the October Revenue Representation and the October Underlying Profit Representation) were made in relation to future matters within the meaning of s 769C of the Corporations Act, s 12BB of the ASIC Act, and s 4 of the ACL. Otherwise, unnecessary to answer.

(16)    If one or more of the October Representations were made in relation to future matters, whether Brambles had reasonable grounds for making or maintaining that representation.

Answer: The applicants failed to establish that Brambles did not have reasonable grounds for making each of the October Representations at the time they were made. However, Brambles did not have reasonable grounds for continuing to maintain (i.e., not correcting, qualifying or withdrawing):

(a)    the October Underlying Profit Representation (and the implied representation referred to in (c) of the answer to Question 13 above in so far as it related to the October Underlying Profit Representation) on and after 16 November 2016; and

(b)    the October Revenue Representation (and the implied representation referred to in (c) of the answer to Question 13 above in so far as it related to the October Revenue Representation) on and after 21 December 2016.

(17)    In the event that the Court determines that Brambles made any or all of the October Representations, whether Brambles, by making or maintaining the October Representations, contravened s 1041H of the Corporations Act, s 12DA of the ASIC Act or s 18 of the ACL.

Answer: Brambles did not, by making the October Representations at the time they were made, contravene s 1041H of the Corporations Act, s 12DA of the ASIC Act or s 18 of the ACL, but it did contravene those provisions by continuing to maintain (i.e., not correcting, qualifying or withdrawing):

(a)    the October Underlying Profit Representation (and the implied representation referred to in (c) of the answer to Question 13 above in so far as it related to the October Underlying Profit Representation) on and after 16 November 2016; and

(b)    the October Revenue Representation (and the implied representation referred to in (c) of the answer to Question 13 above in so far as it related to the October Revenue Representation) on and after 21 December 2016.

D.    Alleged October continuous disclosure obligations

(18)    Whether the October Information was information that:

(a)    existed;

(b)    Brambles had (within the meaning of s 674(2) of the Corporations Act) by no later than 20 October 2016;

(c)    was generally available within the meaning of s 674(2)(c)(i) of the Corporations Act;

(d)    a reasonable person would expect, if it were generally available, to have a material effect on the price or value of Brambles Shares, within the meaning of s 674(2)(c)(ii) of the Corporations Act;

(e)    by reason of the matters in (a) to (d), Brambles was obliged to tell the ASX by no later than 20 October 2016.

Answer: As at 20 October 2016 the October Information did not exist. Otherwise, unnecessary to answer.

(19)    If the October Information existed, and was information that a reasonable person would expect to have a material effect on the price or value of Brambles Shares, whether it was information to which the exception in Listing Rule 3.1A applied.

Answer: Does not arise.

(20)    If the October Information existed, whether:

(a)    by failing to tell the ASX the October Information before 23 January 2017, or 20 February 2017, Brambles contravened ASX Listing Rule 3.1 and s 674(2) of the Corporations Act; and

(b)    if the answer to (a) is yes, the Court ought in its discretion relieve Brambles from liability for such contravention, pursuant to s 1317S of the Corporations Act.

Answer: Does not arise.

(21)    If Brambles was not obliged to tell the ASX the October Information, whether the Alternative October Information was information that:

(a)    existed;

(b)    Brambles had (within the meaning of s 674(2) of the Corporations Act) by no later than 20 October 2016 (or at all);

(c)    was generally available within the meaning of s 674(2)(c)(i) of the Corporations Act;

(d)    a reasonable person would expect, if it were generally available, to have a material effect on the price or value of Brambles Shares, within the meaning of s 674(2)(c)(ii) of the Corporations Act;

(e)    by reason of the matters in (a) to (d), Brambles was obliged to tell the ASX by no later than 20 October 2016.

Answer: The applicants did not press these allegations; therefore, unnecessary to answer.

(22)    If the Alternative October Information existed, and was information that a reasonable person would expect to have a material effect on the price or value of Brambles Shares, whether it was information to which the exception in Listing Rule 3.1A applied.

Answer: Does not arise.

(23)    Whether, if Brambles was not obliged the tell the ASX the August Information or October Information, and if the Alternative October Information existed:

(a)    by failing to tell the ASX the Alternative October Information before 23 January 2017, or 20 February 2017, Brambles contravened ASX Listing Rule 3.1 and s 674(2) of the Corporations Act; and

(b)    if the answer to (a) is yes, the Court ought in its discretion relieve Brambles from liability for such contravention, pursuant to s 1317S of the Corporations Act.

Answer: Does not arise.

E.    Alleged November misleading or deceptive conduct contraventions

(24)    Whether Brambles made the:

(a)    November AGM Representations; and

(b)    November Implied Representations.

Answer: On 16 November 2016, at the time of its Annual General Meeting, Brambles repeated and thereby affirmed the:

(a)    August Underlying Profit Forecast;

(b)    August Sales Revenue Forecast; and

(c)    August ROCI Forecast,

and made an implied representation that Brambles had undertaken all necessary and reasonable investigations before making any statement or representation as to the state of its business and accounts and had satisfied itself on reasonable grounds following those investigations that the public statements were substantially accurate and not misleading or deceptive in any respect (hereafter, the November Representations). However, Brambles did not on that date make an implied representation that no information had come to the attention of Brambles that meant that there was any material risk that Brambles would not achieve the FY17 Guidance, FY19 ROCI Target, August Sales Revenue Forecast, August Underlying Profit Forecast or the August ROCI Forecast. Otherwise, unnecessary to answer.

(25)    Whether the November Representations were continuing representations, until 20 February 2017, otherwise 23 January 2017.

Answer: Each of the November Representations was a continuing representation until Brambles published information to the market that qualified, corrected or withdrew the representation. Brambles did not qualify, correct or withdraw the November Representations until it withdrew the FY17 Guidance on 23 January 2017 or until it withdrew the FY19 ROCI Target on 20 February 2017.

(26)    Whether the November AGM Representations were made in relation to future matters within the meaning of s 769C of the Corporations Act, s 12BB of the ASIC Act, and s 4 of the ACL.

Answer: The representations referred to in (a), (b) and (c) of the answer to Question 24 above (being the affirmation of the August Underlying Profit Forecast, August Sales Revenue Forecast and August ROCI Forecast) were made in relation to future matters within the meaning of s 769C of the Corporations Act, s 12BB of the ASIC Act, and s 4 of the ACL. Otherwise, unnecessary to answer.

(27)    If one or more of the November Representations were made in relation to future matters, whether Brambles had reasonable grounds for making or maintaining that representation.

Answer:

(a)    Brambles did not, as at 16 November 2016, have reasonable grounds for:

(i)    repeating and thereby affirming the August Underlying Profit Forecast; and

(ii)    representing that it had undertaken all necessary and reasonable investigations before making any statement or representation as to the state of its business and accounts and had satisfied itself on reasonable grounds following those investigations that the public statements were substantially accurate and not misleading or deceptive in any respect.

However, the applicants failed to establish that Brambles did not, as at 16 November 2016, have reasonable grounds for repeating and thereby affirming the August Sales Revenue Forecast.

(b)    Further, Brambles did not, as at 21 December 2016, have reasonable grounds for:

(i)    maintaining (i.e., failing to correct, qualify or withdraw) the August Sales Revenue Forecast; and

(ii)    continuing to represent that it had undertaken all necessary and reasonable investigations before making any statement or representation as to the state of its business and accounts and had satisfied itself on reasonable grounds following those investigations that the public statements were substantially accurate and not misleading or deceptive in any respect.

(28)    In the event that the Court determines that Brambles made the November Representations, whether Brambles, by making or maintaining the November Representations, contravened s 1041H of the Corporations Act, s 12DA of the ASIC Act or s 18 of the ACL.

Answer:

(a)    On 16 November 2016, by:

(i)    repeating and thereby affirming the August Underlying Profit Forecast; and

(ii)    representing that it had undertaken all necessary and reasonable investigations before making any statement or representation as to the state of its business and accounts and had satisfied itself on reasonable grounds following those investigations that the public statements were substantially accurate and not misleading or deceptive in any respect,

Brambles contravened s 1041H of the Corporations Act, s 12DA of the ASIC Act and s 18 of the ACL.

(b)    Further, on 21 December 2016, by:

(i)    maintaining (i.e., failing to correct, qualify or withdraw) the August Sales Revenue Forecast; and

(ii)    continuing to represent that it had undertaken all necessary and reasonable investigations before making any statement or representation as to the state of its business and accounts and had satisfied itself on reasonable grounds following those investigations that the public statements were substantially accurate and not misleading or deceptive in any respect,

Brambles contravened s 1041H of the Corporations Act, s 12DA of the ASIC Act and s 18 of the ACL.

F.    Alleged November and December continuous disclosure contraventions

(29)    Whether the November Information and the December Revenue Growth Information (defined below) was information that:

(a)    existed;

(b)    Brambles had (within the meaning of s 674(2) of the Corporations Act) by no later than 16 November 2016;

(c)    was generally available within the meaning of s 674(2)(c)(i) of the Corporations Act;

(d)    a reasonable person would expect, if it were generally available, to have a material effect on the price or value of Brambles Shares, within the meaning of s 674(2)(c)(ii) of the Corporations Act;

(e)    by reason of the matters in (a) to (d), Brambles was obliged to tell the ASX by no later than 16 November 2016.

Answer:

(a)    The following information, namely:

Brambles’ performance in CHEP NA since 1 July 2016 meant it was likely that in FY17 Brambles would not achieve year-on-year Underlying Profit growth of between 9% and 11%, and integral reasons for this were that sales revenue in US Pooled would likely not meet budget in FY17 and direct costs were going up.

(hereafter, the November Underlying Profit Information) was, as at 16 November 2016, information that:

(i)    existed;

(ii)    Brambles had (within the meaning of s 674(2) of the Corporations Act);

(iii)    was not generally available within the meaning of s 674(2)(c)(i) of the Corporations Act;

(iv)    a reasonable person would expect, if it were generally available, to have a material effect on the price or value of Brambles Shares, within the meaning of s 674(2)(c)(ii) of the Corporations Act; and

(v)    by reason of the matters in (a) to (d), Brambles was obliged to tell the ASX.

(b)    Further, the following information, namely:

In respect of sales revenue, Brambles’ performance in CHEP NA since 1 July 2016 meant it was likely that in FY17 Brambles would not achieve year-on-year sales revenue growth of between 7% and 9%, and an integral reason for this was that sales revenue in US Pooled would likely not meet budget in FY17

(hereafter, the December Revenue Growth Information) was, as at 21 December 2016, information that:

(i)    existed;

(ii)    Brambles had (within the meaning of s 674(2) of the Corporations Act);

(iii)    was not generally available within the meaning of s 674(2)(c)(i) of the Corporations Act;

(iv)    a reasonable person would expect, if it were generally available, to have a material effect on the price or value of Brambles Shares, within the meaning of s 674(2)(c)(ii) of the Corporations Act; and

(v)    by reason of the matters in (a) to (d), Brambles was obliged to tell the ASX.

(30)    If the November Information existed, and was information that a reasonable person would expect to have a material effect on the price or value of Brambles Shares, whether it was information to which the exception in Listing Rule 3.1A applied.

Answer: Brambles did not press this allegation; therefore, unnecessary to answer.

(31)    If the November Information and the December Revenue Growth Information existed, whether:

(a)    by failing to tell the ASX the November Information and the December Revenue Growth Information before 23 January 2017, or 20 February 2017, Brambles contravened ASX Listing Rule 3.1 and s 674(2) of the Corporations Act; and

(b)    if the answer to (a) is yes, the Court ought in its discretion relieve Brambles from liability for such contravention, pursuant to s 1317S of the Corporations Act.

Answer: By failing to tell the ASX the November Underlying Profit Information in the period 16 November 2016 to 22 January 2017 (inclusive) and the December Revenue Growth Information in the period 21 December 2016 to 22 January 2017 (inclusive), Brambles contravened ASX Listing Rule 3.1 and s 674(2) of the Corporations Act. The Court ought not, in its discretion, relieve Brambles from liability for such contraventions, pursuant to s 1317S of the Corporations Act.

(32)    If Brambles was not obliged to tell the ASX the November Information, whether the Alternative November Information was information that:

(a)    existed;

(b)    Brambles had (within the meaning of s 674(2) of the Corporations Act) by no later than 16 November 2016 (or at all);

(c)    was generally available within the meaning of s 674(2)(c)(i) of the Corporations Act;

(d)    a reasonable person would expect, if it were generally available, to have a material effect on the price or value of Brambles Shares, within the meaning of s 674(2)(c)(ii) of the Corporations Act;

(e)    by reason of the matters in a. to d., Brambles was obliged to tell the ASX by no later than 16 November 2016.

Answer: The applicants did not press these allegations; therefore, unnecessary to answer.

(33)    If the Alternative November Information existed, and was information that a reasonable person would expect to have a material effect on the price or value of Brambles Shares, whether it was information to which the exception in Listing Rule 3.1A applied.

Answer: Does not arise.

(34)    Whether, if Brambles was not obliged the tell the ASX the August Information, October Information or November Information, and the Alternative November Information existed:

(a)    by failing to tell the ASX the Alternative November Information before 23 January 2017, or 20 February 2017, Brambles contravened ASX Listing Rule 3.1 and s 674(2) of the Corporations Act; and

(b)    if the answer to (a) is yes, the Court ought in its discretion relieve Brambles from liability for such contravention, pursuant to s 1317S of the Corporations Act.

Answer: Does not arise.

G.    Alleged January Representations

(35)    Whether Brambles made the:

(a)    23 January Representations;

(b)    January Outlook Reliability Representation; and

(c)    January No Material Risk Representation.

Answer: Brambles did not make any of the:

(a)    23 January Representations;

(b)    January Outlook Reliability Representation; and

(c)    January No Material Risk Representation.

(36)    Whether the 23 January Representations were made in relation to future matters within the meaning of s 769C of the Corporations Act, s 12BB of the ASIC Act, and s 4 of the ACL.

Answer: Does not arise.

(37)    If the 23 January Representations were made in relation to future matters, whether Brambles had reasonable grounds for those representations.

Answer: Does not arise.

(38)    In the event that the Court determines that Brambles made the January Representations, whether Brambles, by making the January Representations, contravened s 1041H of the Corporations Act, s 12DA of the ASIC Act or s 18 of the ACL.

Answer: Does not arise.

H.    Causation, loss and damage

(39)    If Brambles did contravene s 674(2) of the Corporations Act during the Relevant Period, whether the Applicants and Group Members have suffered damage that “resulted from” the contravention(s) within the meaning of s 1317HA of the Corporations Act.

Answer: The second applicants suffered damage that “resulted from” Brambles’ contraventions of s 674(2) of the Corporations Act within the meaning of s 1317HA of the Corporations Act, in the amount of $2,255.15. The first applicant did not suffer damage that “resulted from” Brambles’ contraventions of s 674(2) of the Corporations Act within the meaning of s 1317HA of the Corporations Act. Group Members who purchased Brambles Shares in the period 16 November 2016 to 22 January 2017 (inclusive) have suffered damage that “resulted from” Brambles’ contraventions of s 674(2) of the Corporations Act within the meaning of s 1317HA of that Act, unless it is established with respect to a Group Member who purchased Brambles shares in that period that the Group Member was not misled or knew the information the subject of the non-disclosure and/or would have taken no notice had they known of the misleading conduct or of the information had it been disclosed.

(40)    If Brambles did contravene s 1041H of the Corporations Act, whether the Applicants and Group Members have suffered loss or damage “by” the conduct contravening that section within the meaning of s 1041I of the Corporations Act.

Answer: The second applicants suffered loss or damage “by” the conduct of Brambles that contravened s 1041H of the Corporations Act within the meaning of s 1041I of the Corporations Act, in the amount of $2,255.15. The first applicant did not suffer loss or damage “by” the conduct of Brambles that contravened s 1041H of the Corporations Act within the meaning of s 1041I of the Corporations Act. Group Members who purchased Brambles Shares in the period 16 November 2016 to 22 January 2017 (inclusive) have suffered damage “by” Brambles’ contraventions of s 1041H of the Corporations Act within the meaning of s 1041I of that Act, unless it is established with respect to a Group Member who purchased Brambles shares in that period that the Group Member was not misled or knew the information the subject of the non-disclosure and/or would have taken no notice had they known of the misleading conduct or of the information had it been disclosed.

(41)    If Brambles did contravene s 12DA(1) of the ASIC Act, whether the Applicants and Group Members have suffered loss or damage “by” the conduct contravening that section within the meaning of s 12GF of that Act.

Answer: The second applicants suffered loss or damage “by” the conduct of Brambles that contravened s 12DA of the ASIC Act within the meaning of s 12GF of the ASIC Act, in the amount of $2,255.15. The first applicant did not suffer loss or damage “by” the conduct of Brambles that contravened s 12DA of the ASIC Act within the meaning of s 12GF of that Act. Group Members who purchased Brambles Shares in the period 16 November 2016 to 22 January 2017 (inclusive) have suffered loss or damage “by” Brambles’ contraventions of s 12DA of the ASIC Act within the meaning of s 12GF of that Act, unless it is established with respect to a Group Member who purchased Brambles shares in that period that the Group Member was not misled or knew the information the subject of the non-disclosure and/or would have taken no notice had they known of the misleading conduct or of the information had it been disclosed.

(42)    If Brambles did contravene s 18 of the ACL, whether the Applicants and Group Members have suffered loss or damage “because of” the conduct contravening that section within the meaning of s 236 of the ACL.

Answer: The second applicants did suffer loss or damage “because of” the conduct of Brambles that contravened s 18 of the ACL within the meaning of s 236 of the ACL, in the amount of $2,255.15. The first applicant did not suffer loss or damage “because of” the conduct of Brambles that contravened s 18 of the ACL within the meaning of s 236 of the ACL. Group Members who purchased Brambles Shares in the period 16 November 2016 to 22 January 2017 (inclusive) have suffered loss or damage “because of” Brambles’ contraventions of s 18 of the ACL within the meaning of s 236 of the ACL, unless it is established with respect to a Group Member who purchased Brambles shares in that period that the Group Member was not misled or knew the information the subject of the non-disclosure and/or would have taken no notice had they known of the misleading conduct or of the information had it been disclosed.

(43)    Whether the market-based causation pleaded by the Applicants satisfies the causal connection required by s 1317HA of the Corporations Act, s 1041I of the Corporations Act, s 12GF of the ASIC Act, or s 236 of the ACL.

Answer: The applicants’ claims of active indirect market-based causation are available to prove causally connected loss under s 1317HA of the Corporations Act, s 1041I of the Corporations Act, s 12GF of the ASIC Act, and s 236 of the ACL.

(44)    If so:

(a)    whether any contravention(s) by Brambles caused the traded price for Brambles Shares to be materially higher during the Relevant Period than the traded price that would have existed had the contravention(s) not occurred;

(b)    whether the Applicants and Group Members acquired their Brambles Shares in that inflated market.

Answer: The contraventions by Brambles set out above caused the traded price for Brambles Shares to be materially higher during the period 16 November 2016 to 23 January 2017 than the traded price that would have existed had the contraventions not occurred. The first applicant did not acquire Brambles Shares during that period and so did not acquire Brambles Shares in that inflated market. The second applicants and those Group Members who acquired Brambles Shares during that period acquired those Brambles Shares in that inflated market.

(45)    If so, what is the correct method of measuring any loss or damage suffered by the Applicants and Group Members.

Answer: The correct method of measuring any loss or damage suffered by the applicants and Group Members is to award them compensation by reference to the abnormal returns following the January Disclosure, which represents the share price decline after controlling for extraneous matters. That is, $1.85 per share for shares purchased between 21 December 2016 and 23 January 2017 and held or sold after that date. And for shares purchased in the period from 16 November 2016 to 20 December 2016, 85% of that amount, being approximately $1.57 per share, save for any shares which the Group Member sold for a price including the inflation component.

REASONS FOR JUDGMENT

MURPHY J

1    On 10 April 2026 the Court handed down reasons for judgment (J) in this securities class action and directed the parties to confer and endeavour to agree in relation to orders to answer the common questions to reflect those reasons, and in relation to the first and second applicants’ individual claims.

2    The orders made will operate to bind Brambles, the applicants and the group members under s 33ZB of the of the Federal Court of Australia Act 1976 (Cth) (FCA) and create a statutory estoppel which will provide finality in relation to the claims of group members, who are not parties to the proceeding. Such finality is an important aspect of the utility of the class action regime. For that and other reasons it is important that the orders reflect the findings of fact and conclusions of law that the Court has made and stated in its reasons

3    The parties are in dispute as to many of the orders appropriate to be made to embody the judgment of the Court, and also as to the appropriate order as to costs of the proceeding, and whether a lump-sum costs assessment is appropriate. They are, though, in agreement as to the declarations of contravention to be made, and I am satisfied those declarations are within power and appropriate.

4    I now turn to deal with the disputed matters.

1.    The Common Issues

5    It is useful to begin by explaining the genesis of the agreed common issues heard and determined in the initial trial, and also to explain the Court’s power to vary the common questions so as to reflect the findings of fact and law it has made.

6    By pre-trial case management orders, the applicants were directed to prepare and provide to Brambles:

…a joint list of factual and legal issues to be determined at the initial trial, which are common to the claims of the applicant and group members or at least one or more subsets of group members (Common Issues).

7    The parties were directed to confer and seek to agree the list of common factual and legal issues, and if they were unable to agree to bring the question before the Court. The parties agreed the common factual and legal issues and filed a document titled ‘Agreed Proposed List of Factual and Legal Issues to be Determined at the Initial Trial’ (List of Common Issues). I reviewed the List of Common Issues and determined it was sufficient, a least at that stage.

8    The orders further directed that the parties use the List of Common Issues to prepare an agreed template for written submissions, which would comprise the framework within which each party would set out its written submissions on each of the common issues identified. The initial trial proceeded on the basis of the List of Common Issues, and the parties made their opening and closing submissions largely in accordance with the agreed template.

9    My primary reason for ordering the parties to endeavour to agree on the common issues was to have the parties identify what they considered to be the common issues for the initial trial, so to ensure that the initial trial would be conducted after “identifying what might be the common issues for determination” (emphasis added): see Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2009] FCAFC 26; 355 ALR 20 at [8] (Moore, Sundberg and Tracey JJ)). In Merck, their Honours said “might” because they correctly recognised that issues that might appear to be common prior to trial may not turn out to be so. Another reason was to require the parties to identify the common issues for the purposes of their opening submissions, and have the submissions join issues rather than passing like ships in the night, as can happen in class action litigation: see Peterson v Merck Sharpe & Dohme (Australia) Pty Ltd (No.3) [2009] FCA 5 at [56] (Jessup J).

10    The orders were effective in achieving those outcomes. The parties agreed the common issues in a sensible way, they filed written submissions in accordance with the agreed template which addressed the List of Common Issues framed largely by way of questions, the initial trial ran smoothly, and neither party was drawn to complain of ambush or surprise in relation to the issues ventilated in the initial trial.

11    At least initially, the formulation of the common issues in representative proceedings (which are usually expressed as common questions to be answered) is generally a matter for the parties. It is incumbent upon the parties, consistently with their overarching obligation under ss 37M and 37N of FCA to do their best to agree on the common questions that should be answered so as to give the greatest possible utility to the initial trial. The parties’ obdurate approach to agreement on the common issues in Merck was the subject of adverse comment by the Full Court: Merck at [11]. These days it is usual for the common issues to be agreed and for Merck orders (where made) to be made by consent: Gill v Ethicon Sàrl (No 3) [2019] FCA 587; 369 ALR 175 at [11] (Lee J).

12    Merck orders are generally appropriate but they are not mandatory: e.g., order of Beach J in TPT Patrol Pty Ltd v Myer Holdings Limited (Federal Court of Australia, VID1494/2016, 31 May 2017); Thomas v Commonwealth Financial Planning Ltd [2021] FCA 665; 153 ACSR 1 at [95] (Beach J). What is centrally important is that, by one mechanism or another:

(a)    the Court “ensure[s] that as many questions of law and fact, that have a degree of commonality, are decided” so as to give the greatest utility to the initial trial: Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (No 3) [2001] VSC 372 at [33], [50] (Gillard J). That oftentimes requires the Court determine issues which common to a subset of group members only (sometimes called “issues of commonality”) where doing so is likely to have utility in the proceeding: e.g., Dillon v RBS Group (Australia) Pty Ltd [2017] FCA 96; 252 FCR 150 at [68] (Lee J); and

(b)    the common issues are sufficiently identified, and framed as questions so as to facilitate the making of precise s 33ZB orders, which specify the metes and bounds of any statutory estoppel and which allows a party disaffected by the orders to challenge the answers by way of appeal, as contemplated by s 33ZC(1) of the FCA: ISG Management Pty Ltd v Mutch [2020] FCAFC 213; 385 ALR 146 at [29] (White, Lee and Sarah C Derrington JJ).

13    When the common issues are set by way of a Merck order (noting that here they were set by Court-supervised agreement rather than order) those orders are usually made before trial, before the issues have been fully refined in opening submissions and before the evidence has been heard. They are interlocutory in nature and not set in stone.

14    Whichever method is used to identify the common issues prior to trial, it is far from unusual for a court to find that in the initial trial other common issues appear and require to be decided, and far from unusual that the common questions are varied following the initial trial so that the court’s findings are reflected in the s 33ZB orders. In Lloyd v Belconnen Lakeview Pty Ltd [2019] FCA 2177; 377 ALR 234, Lee J explained (at [377]-[378])that it was not an “unexpected development” in class action litigation that “the intense preparation prior to the commencement of the initial trial and the hearing itself can lend clarity to identifying what, in truth, are the common, or largely common, contested issues”. His Honour made orders to vary the Merck orders in that case and to provide answers to the common questions as varied.

15    I now turn to deal with the detail of the parties’ dispute about the common questions and answers in the present case.

1.1    Common Question/Answers 4, 5, 16, 17, 27 and 28

16    The parties disagree as to aspects of common questions 4, 5, 16, 17, 27 and 28, and aspects of the proposed answers to those questions. The disagreements largely turn on the same issue and I will use Common Question/Answer 4 as an example.

17    The applicants propose that Common Question 4 be framed as follows, with the disputed text underlined.

If one or more of the August Sales Revenue Forecast, the August Underlying Profit Forecast, the August Costs Representations, the August Price Representation, the August ROCI Forecast and the Medium-Term Targets were made in relation to future matters, whether Brambles had reasonable grounds for making or maintaining that representation.

That is, the applicants propose to add the phrase “or maintaining” to the common issues agreed in the List of Common Issues.

18    Brambles objects to the applicants’ use of the phrase “or maintaining”. It says, and I accept, that the List of Common Issues did not identify an issue as to whether Brambles had reasonable grounds for maintaining the alleged August Representations (or the alleged October Representations and November Representations). Rather the identified common issues went only to whether Brambles had reasonable grounds for making those representations. Brambles submitted that it was impermissible for the applicants to now seek to include the further words in the otherwise agreed Common Questions 4, 5, 16, 17, 27 and 28.

19    Further, in relation to the proposed answers to Common Question 4, 5, 16, 17, 27 and 28, the parties are agreed as to the first part of the proposed answers, but not to the latter part. The applicants’ proposed answer to Common Question 4 is set out below, with the disputed text underlined.

Answer: The applicants failed to establish that Brambles did not have reasonable grounds for making each of the August Representations at the time they were made. However, Brambles did not have reasonable grounds for continuing to maintain:

(a)    the August Underlying Profit Forecast (and the implied representation referred to in ((d)) of the answer to Question 1 above in so far as it related to the August Underlying Profit Forecast) on and after 16 November 2016; and

(b)    the August Sales Revenue Forecast (and the implied representation referred to in ((d)) of the answer to Question 1 above in so far as it related to the August Sales Revenue Forecast) on and after 20 December 2016.

20    Brambles objects to those answers, although it did not articulate a reasoned basis for the objection.

21    I do not accept Brambles’ submissions in respect to these Common Questions/Answers.

22    First, there is nothing objectionable or impermissible in the use of the phrase “or maintaining” in Common Questions 4, 5, 16, 17, 27 and 28, or in answering those questions on that basis. I accept that the List of Common Issues asked whether Brambles had reasonable grounds for making the alleged August, October and November Representations, not whether Brambles had reasonable grounds for maintaining those representations. But the Court found that:

(a)    the relevant August, October and November Representations were made in relation to a future matter within the meaning of s 769C of the Corporations Act, s 12BB of the ASIC Act, and/or s 4 of the ACL (J [846], [1617] and [2472]);

(b)    the relevant August, October and November Representations were continuing representations until 20 February 2017, otherwise 23 January 2017 (J [855], [1620] and [2474]); and

(c)    the August and November Representations were relevantly interchangeable because the November AGM Representations repeated and reaffirmed the August Express Representations, and both sets of representations carried the same All Reasonable Investigations Implied Representation (J [3077]).

The issue of whether Brambles had reasonable grounds for maintaining the August, October and November Representations (at later points in time to when the representations were found to have been made) was before the Court, and decided in the reasons.

23    Indeed, Brambles’ closing submissions recognised that the common issues included whether it had reasonable grounds for maintaining the alleged August, October and November AGM Representations. Its closing submissions said (at [352]):

In any event, if the Court finds that one or more of the August Representations were made as to future matters, it is submitted that Brambles comfortably satisfied its evidentiary burden in showing that it had reasonable grounds for making them (and, if they are characterised as continuing representations, for maintaining those representations throughout the Relevant Period).

(Emphasis added.)

(See also Brambles’ submissions in relation to the October Representations, and November AGM Representations.)

24    The Court found that as at 18 August 2016, and as at 20 October 2016, the applicants did not establish that Brambles lacked reasonable grounds for its continuing August Representations. But in relation to later dates in the Relevant Period, the Court held that:

(a)    on and from 16 November 2016, Brambles no longer had reasonable grounds for the November Representations, which repeated and reaffirmed the August Underlying Profit Forecast (J [2894]). That was a finding on the way to the decision that Brambles had engaged in misleading or deceptive conduct by maintaining the continuing August Underlying Profit Forecast when it no longer had reasonable grounds to do so; and

(b)    on and from 21 December 2016, Brambles no longer had reasonable grounds for the November Representations, which repeated and reaffirmed the August Sales Revenue Forecast (J [3741]). That was also a finding on the way to the decision that Brambles had engaged in misleading or deceptive conduct by maintaining the continuing August Sales Revenue Forecast when it no longer had reasonable grounds to do so.

25    Accordingly, it is appropriate to modify the agreed common issues and include the phrase “or maintaining” in Common Questions 4, 5, 16, 17, 27 and 28. Doing so will ensure that the questions and answers properly embody the Court’s findings.

26    Going now to the dispute regarding the applicants’ proposed answers to Common Questions 4, 5, 16, 17, 27 and 28, Brambles’s submissions did not articulate a reasoned basis for its objection. I infer that its objection is based on the fact that those proposed answers relate to the applicants’ contested assertion that the alleged contraventions extend to Brambles “maintaining” the August Representations. It seemed to contend that the proposed answers were impermissible because the existence of reasonable grounds for maintaining the alleged representations falls outside the text of the List of Common Issues. I do not accept that. Further, insofar as the answers go further than the questions asked, they nevertheless accurately capture the Court’s findings.

27    I have made orders in relation to Common Questions/Answers 4, 5, 16, 17, 27 and 28 in the form proposed by the applicants.

1.2    Common Questions/Answers 13, 27 and 28

28    In relation to the proposed answers to Common Questions 13, 27 and 28, the parties disagree as to whether the answer should follow the precise words of the alleged All Reasonable Investigations Implied Representations. I accept Brambles’ contention that the answers should do so.

29    In relation to Common Question 13 Brambles proposes the following answer (here setting out only the relevant disputed part, with the disputed words underlined):

Answer: Subject to the qualifications, risk factors and disclaimer accompanying the Q1 Trading Update, on 20 October 2016, at the time of releasing its 1Q17 Trading Update, Brambles made:

(a)    the October Revenue Representation;

(b)    the October Underlying Profit Representation; and

(c)    …

30    Brambles submits that the addition of those words was appropriate having regard to the Court’s reasons (at J [1608]) where the Court found:

Subject to the qualifications, risk factors and disclaimer accompanying the Q1 Trading Update (which I later discuss), I consider Brambles thereby made the October Underlying Profit Representation as alleged (which repeated and reaffirmed the August Underlying Profit Forecast).

31    Unfortunately, the use of the phrase “which I later discuss” reveals a small proofing error. The Court considered the asserted “qualifications and risk factors” and the express written disclaimer earlier rather than later in the reasons. The Court held that:

(a)    none of the asserted qualifications and risk factors operated to qualify the Q1 Trading Update such that it did not convey the October Revenue Representation (at J [1597]); and

(b)    that the express disclaimer did not have the effect of erasing or neutralising the alleged misleading or deceptive effect of the October Representations (at J [1601]).

32    To add the words to Common Question 13 which Brambles proposes would incorrectly record the Court’s findings, which were that the relevant representations were conveyed despite rather than subject to the qualifications, risk factors and disclaimer accompanying the Q1 Trading Update. I do not accept Brambles’ proposed words.

33    Another disagreement between the parties relates to the proposed answers to Common Questions 27 and 28.

34    The applicants propose:

(a)    an additional paragraph in answer to Common Question 27, as follows:

Further, Brambles did not, as at 21 December 2016, have reasonable grounds for:

(a)    maintaining (i.e. failing to correct, qualify or withdraw) the August Sales Revenue Forecast; and

(b)    continuing to represent that it had undertaken all necessary and reasonable investigations before making that representation and had satisfied itself on reasonable grounds that the representation was substantially accurate and not misleading or deceptive.

(b)    an additional paragraph in answer to Common Question 28, as follows:

Further, on 21 December 2016, by:

(a)    maintaining (i.e. failing to correct, qualify or withdraw) the August Sales Revenue Forecast; and

(b)    continuing to represent that it had undertaken all necessary and reasonable investigations before making that representation and had satisfied itself on reasonable grounds that the representation was substantially accurate and not misleading or deceptive,

Brambles contravened s 1041H of the Corporations Act, s 12DA of the ASIC Act and s 18 of the ACL.

35    Brambles objects to those proposed answers, but it again failed to articulate a reasoned basis for that objection. Again, I infer that Brambles’ objection is based in the proposition that the List of Common Issues did not identify any allegation of an absence of reasonable grounds for the relevant representations or an allegation of misleading or deceptive conduct as at 21 December 2016.

36    If that is Brambles’ position, it misunderstands the importance of ensuring that the s 33ZB orders in the present case reflect the findings of fact and conclusions of law that the Court has made and stated in its reasons. The Court found that, as at 21 December 2016 (when the Board approved the December Reforecast at the December Board Meeting) there were not reasonable grounds for Brambles to maintain (i.e., fail to qualify, correct or withdraw) the FY17 Guidance including in relation to FY17 sales revenue growth (J [3738]). That must be reflected in the s 33ZB orders.

37    It is appropriate to make orders to answer those common questions in the terms proposed by the applicants.

1.3    Common Questions/Answers 29 and 31

38    The applicants propose a variation to the agreed Common Question 29 in the following terms (with the disputed text underlined).

Whether the November Information and the December Revenue Growth Information was information that:

(a)    existed;

(b)    Brambles had (within the meaning of s 674(2) of the Corporations Act) by no later than 16 November 2016;

(c)    was generally available within the meaning of s 674(2)(c)(i) of the Corporations Act;

(d)    a reasonable person would expect, if it were generally available, to have a material effect on the price or value of Brambles Shares, within the meaning of s 674(2)(c)(ii) of the Corporations Act;

by reason of the matters in (a) to (d) Brambles was obliged to tell the ASX by no later than 16 November 2016.

Brambles objects to the underlined text, which is additional to Common Question 29 as it appeared in the List of Common Issues.

39    The applicants propose the following answer to Common Question 29, in relation to which the first half is agreed and the second half is not. The applicants proposed answer, is set out below (with the disputed text underlined):

Answer: The following information, namely:

Brambles’ performance in CHEP NA since 1 July 2016 meant it was likely that in FY17 Brambles would not achieve year-on-year Underlying Profit growth of between 9% and 11%, and integral reasons for this were that sales revenue in US Pooled would likely not meet budget in FY17 and direct costs were going up.

(hereafter, the November Underlying Profit Information) was, as at 16 November 2016, information that:

(a)    existed;

(b)    Brambles had (within the meaning of s 674(2) of the Corporations Act);

(c)    was not generally available within the meaning of s 674(2)(c)(i) of the Corporations Act;

(d)    a reasonable person would expect, if it were generally available, to have a material effect on the price or value of Brambles Shares, within the meaning of s 674(2)(c)(ii) of the Corporations Act; and

(e)    by reason of the matters in (a) to (d), Brambles was obliged to tell the ASX.

Further, the following information, namely:

In respect of sales revenue, Brambles’ performance in CHEP NA since 1 July 2016 meant it was likely that in FY17 Brambles would not achieve year-on-year sales revenue growth of between 7% and 9%, and an integral reason for this was that sales revenue in US Pooled would likely not meet budget in FY17

(hereafter, the December Revenue Growth Information) was, as at 21 December 2016, information that:

(a)    existed;

(b)    Brambles had (within the meaning of s 674(2) of the Corporations Act);

(c)    was not generally available within the meaning of s 674(2)(c)(i) of the Corporations Act;

(d)    a reasonable person would expect, if it were generally available, to have a material effect on the price or value of Brambles Shares, within the meaning of s 674(2)(c)(ii) of the Corporations Act; and

(e)    by reason of the matters in (a) to (d), Brambles was obliged to tell the ASX.

40    Brambles objects to the latter part of the applicants’ proposed answer on the basis that the agreed List of Common Issues did not ask about the December Revenue Growth Information.

41    Brambles’ objection to these questions and answers is another example of its erroneous approach to the orders necessary to embody the Court’s judgment. The Court held that that Brambles should have disclosed to the ASX:

(a)    the November Underlying Profit Information (as defined) on 16 November 2016 (J [3037], [3039]); and

(b)    the December Revenue Growth Information (as defined) on 21 December 2016 (J [3746]).

Thus, the proposed answer reflects the Court’s findings and is appropriate. The same can be said of the reference to the December Revenue Growth Information in Common Question/Answer 31.

42    The parties disagree in relation to the applicants proposed answer to Common Question 31, which is as follows:

Answer: By failing to tell the ASX the November Underlying Profit Information in the period 16 November 2016 to 22 January 2017 (inclusive) and the December Revenue Growth Information in the period 21 December 2016 to 22 January 2017 (inclusive), Brambles contravened ASX Listing Rule 3.1 and s 674(2) of the Corporations Act. The Court ought not, in its discretion, relieve Brambles from liability for such contraventions, pursuant to s 1317S of the Corporations Act.

43    Brambles proposes the following (changes marked by underlining and strike-through):

Answer: By failing to tell the ASX the November Underlying Profit Information before 23 January 2017 in the period 16 November 2016 to 22 January 2017 (inclusive) and the December Revenue Growth Information in the period 21 December 2016 to 22 January 2017 (inclusive), Brambles contravened ASX Listing Rule 3.1 and s 674(2) of the Corporations Act. The Court ought not, in its discretion, relieve Brambles from liability for such contraventions, pursuant to s 1317S of the Corporations Act.

44    Brambles’ proposed answer is inappropriate. It fails to record the Court’s finding that by not telling the ASX the December Sales Revenue Growth Information (as defined) on and from 21 December 2016 to 22 January 2017, Brambles contravened the continuous disclosure obligation.

45    It is appropriate to answer Common Questions 29 and 31 in the form proposed by the applicants.

1.4    Common Question/Answer 6

46    The disagreement in relation to Common Question/Answer 6 is straightforward. The List of Common Issues asked whether, during the Relevant Period, six named Brambles’ executives were officers of Brambles within the meaning of s 9 of the Corporations Act and ASX Listing Rule 19.12. That list did not include that question in relation to Mr Carmelo Alonso-Bernaola Ruiz.

47    Alonso gave evidence in the initial trial regarding, amongst other things, his role, and responsibilities within Brambles. In written closing submissions, while conceding that they had not pleaded the issue, the applicants contended that Alonso was an “officer” of Brambles during the Relevant Period, and said that if necessary it would apply to amend its pleadings. Senior counsel for the applicants submitted that there could be no prejudice to Brambles as the contention was entirely based in the evidence and it was “simply a matter of applying the statutory criteria to the trial evidence” (T 2460:9-13). Senior counsel for Brambles expressly said that Brambles did not object to the applicants’ late raising of that contention (T 2461:10-20). That issue was ‘in the ring’ and the Court found that Alonso was an “officer” within the meaning of s 9 of the Corporations Act (at J [2935]). That finding should be recorded in the s 33ZB orders.

48    It is appropriate to order Common Question/Answer 6 in the form proposed by the applicants.

1.5    Common Questions/Answers 39-42

49    The parties are in dispute in relation to the appropriate answers to the common questions concerning the casually connected loss of group members. The issue is the same in each of Common Questions 39-42, and I will use Common Question 39, as an example. That question asks:

If Brambles did contravene s 674(2) of the Corporations Act during the Relevant Period, whether the Applicants and Group Members have suffered damage that “resulted from” the contravention(s) within the meaning of s 1317HA of the Corporations Act.

50    The applicants propose the following answer:

Answer: The first applicant did not suffer damage that “resulted from” Brambles’ contraventions of s 674(2) of the Corporations Act within the meaning of s 1317HA of the Corporations Act. The second applicants did suffer damage that “resulted from” Brambles’ contraventions of s 674(2) of the Corporations Act within the meaning of s 1317HA of the Corporations Act, in the amount of $2,255.15. Group Members who purchased Brambles Shares in the period 16 November 2016 to 22 January 2017 (inclusive) have suffered damage that “resulted from” Brambles’ contraventions of s 674(2) of the Corporations Act within the meaning of s 1317HA of the Corporations Act, unless Brambles establishes, with respect to a Group Member, that a novus actus interveniens meant that the Group Member has not suffered loss or damage that resulted from Brambles’ contraventions.

51    Brambles proposes the following answer (changes marked by underlining and strike-through):

Answer: The first applicant did not suffer damage that “resulted from” Brambles’ contraventions of s 674(2) of the Corporations Act within the meaning of s 1317HA of the Corporations Act. The second applicants did suffer damage that “resulted from” Brambles’ contraventions of s 674(2) of the Corporations Act within the meaning of s 1317HA of the Corporations Act, in the amount of $2,255.15. The parties will be heard in relation to whether some Group Members who purchased Brambles shares between 16 November 2016 and 23 January 2017 were not misled or knew the information the subject of the non-disclosure and/or would have taken no notice had they known of the misleading conduct or of the information had it been disclosed. Group Members who purchased Brambles Shares in the period 16 November 2016 to 22 January 2017 (inclusive) have suffered damage that “resulted from” Brambles’ contraventions of s 674(2) of the Corporations Act within the meaning of s 1317HA of the Corporations Act, unless Brambles establishes, with respect to a Group Member, that a novus actus interveniens meant that the Group Member has not suffered loss or damage that resulted from Brambles’ contraventions.

52    Brambles did not clearly articulate the basis for its proposed answers to Common Questions 39-42. It merely pointed to the Court’s reasons (at J [4162]) and said little further. The reasons relevantly provide (at J [4161]-[4162]):

[4161]    I am satisfied that the second applicant has suffered damage that “resulted from”, “by” or “because of” the Contravening Conduct within the meaning of the statutory provisions outlined above. The same is likely to apply to the group members who purchased Brambles shares between 16 November 2016 and 23 January 2017.

[4162]    However, having regard to Brambles’ submissions it may wish to be heard in relation to whether some group members who purchased Brambles shares between 16 November 2016 and 23 January 2017 were not misled or knew the information the subject of the non-disclosure and/or would have taken no notice had they known of the misleading conduct or of the information had it been disclosed. That can be considered after orders are made in respect of the common questions.

53    As the applicants submitted, the problem with Brambles’ proposed answers are that they are “non-answers” in relation to any causally connected loss suffered by group members. Its proposed answers say nothing about the findings set out in the judgments, only that Brambles should be heard in relation to the issue as to whether some group members who purchased Brambles shares between 16 November 2016 and 23 January 2017 were not misled or knew the information the subject of the non-disclosure and/or would have taken no notice had they known of the contravening conduct, or of the information, had it been disclosed.

54    The Court held (at J [4007]):

In my view the applicants will have established causation if they prove:

(a)    First, that Brambles shares traded in an efficient market; that being one in which the price of the shares could be expected to react quickly to new information (sometimes called the “efficient market hypothesis”): Myer at [1629]; Crowley (No 2) at [173].

(b)    Second, that the Contravening Conduct caused Brambles shares to trade at inflated prices during the Relevant Period. That is, that the share price would have been lower than it was during the Relevant Period if the market had known of the information that should have been disclosed to it (or, alternatively, if the market did not have misleading information).

(c)    Third, that they bought Brambles shares in a market inflated by Brambles’ Contravening Conduct and thereby suffered loss.

The Court found that each of those matters was proven. Having regard to the findings of the Court (except for any group members who were not misled or knew the information the subject of the non-disclosure and/or would have taken no notice had they known of the contravening conduct or of the information had it been disclosed) group members who purchased Brambles shares in the period 16 November 2016 to 22 January 2017 have suffered causally connected loss.

55    The Court considered Brambles’ argument about group members alleged to fall within that exception (at J [3993]-[3995]). The Court said:

[3993]    …Brambles did not adduce any evidence to show that this is a real issue in this proceeding, as distinct from a theoretical concern. To my mind, it is an issue more appropriately to be dealt with following determination of the common questions. And if it is a real issue in the proceeding, the Court can hear submissions in relation to the appropriate approach, including how any unfairness to Brambles that may arise through application of the concept of novus actus interveniens should be dealt with. In my view it is likely that any unfairness is capable of being dealt with through case management orders which are consistent with the overarching purpose of the just determination of the proceeding, according to law and as quickly, inexpensively and efficiently as possible pursuant to s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA).

[3994]    Again, I agree with Beach J in Myer where his Honour said (at [1671]):

… on one view an investor may still need to give evidence that but for the contravention he would not have purchased the shares or not at the price he paid. The individual claimant may still have this onus, but it would hardly be onerous or challenged in the vast majority of cases; and it could be discharged by a simple statutory declaration or ticking boxes in a verified questionnaire post judgment on the common issues. 

[3995]    Another possibility is that the Court could require the applicants to put forward a representative sample of group members who could give evidence and be cross-examined. This might dispose of some group members’ claims, and it would also allow Brambles to decide whether it is worth the powder and shot to require the applicants to call evidence from group members to show that, but for the contravention, he or she would not have purchased the shares at the price he or she paid. It might also allow the Court to reach a more informed understanding of what procedure in the circumstances would be most consistent with the overarching purpose of a just determination as quickly, inexpensively and efficiently as possible. This is a matter for decision following judgment on the common issues.

56    The applicants submitted:

In truth, [Brambles’] submission is not about causation-in-fact, but about scope of liability. Brambles’ position cannot be that any shareholder who purchased with indifference to whether Brambles had withheld material information has suffered losses that were inevitable, as a matter of fact, irrespective of its contraventions. That is because, as a matter of (now established) fact, if Brambles had disclosed the material information, its share price would have fallen. Investors who were indifferent to the information would, in the counterfactual scenario, have acquired shares in that lower market. Their preparedness (as a result of their indifference) to acquire Brambles shares irrespective of the nondisclosure would not itself result in an inflated price being paid.

Rather, Brambles’ submission is properly understood as being that an investor who was indifferent to the nondisclosed information (had it been disclosed) ought be treated as having suffered no loss. That is precisely what the concept of a novus actus interveniens captures. As McHugh J said in I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [[2002] HCA 41; 210 CLR 109 at [85]], “although the contravening conduct may be the sine qua non of the loss claimed, there may come a point where the applicant’s own conduct was ‘so dominant’ in the causal chain as to constitute a novus actus interveniens”. It has been held that on that question, it is the defendant (here, Brambles) which bears at least an evidentiary onus [Re HIH Insurance Limited (in liq) [2016] NSWSC 482 at [74]].

57    They contended that the appropriate answer to Common Questions 39-42 should reflect that causation of group member loss has in fact has been established, and it should also reflect that the concern Brambles has raised about novus actus interveniens is one which involves Brambles establishing the premise on which it relies in a way which is more than merely theoretical. They submitted that their proposed answer is correct, and Brambles’ non-answer ought to be rejected.

58    There is force in the applicants’ contentions and Brambles’ proposed non-answer is completely unsatisfactory. To my mind, Brambles’ concern seems more likely to be theoretical rather than practical, and it seems unlikely that litigating the issue will be worth the parties’ powder and shot. Recently the Full Court in Crowley v Worley Limited [2026] FCAFC 78 (at [327]-[328] (Markovic, Halley and Owens JJ)) made the following pertinent observations.

[327]    In other words, the fact that individual investors knew, or did not care, about the non-disclosed information does not change the fact that the price of securities in an informationally efficient market does not reflect all publicly available information. If the non-disclosure of information caused the market price to be different than it would have been, then that fact is true whether or not there were individual investors of the kind postulated participating in the market.

[328]    That is not to say, of course, that an investor of that kind would be entitled to recovery. An on-market purchase of securities alone would not establish that an applicant would not have acquired those securities, or not at that price, but for the contravening conduct. That said, in nearly every case, absent some other relevant circumstances, an inference to that effect may well be easy to draw from the mere fact of purchase. But so to observe is not to suggest that there is any kind of reverse onus at play … It simply reflects the reality that most market participants do trade on the basis of an assumption that all material information has been disclosed to the market; cf. Re HIH Insurance [2016] NSWSC 482; (2016) 335 ALR 320 at [72] (Brereton J); Masters v Lombe (Liquidator); In the matter of Babcock and Brown Limited (In Liq) [2019] FCA 1720 at [390]-[392] (Foster J) … To the extent the issue has practical dimensions in a class action, we agree with the observations of Beach J in Myer at [1671]:

[A]n investor may still need to give evidence that but for the contravention he would not have purchased the shares or not at the price he paid. The individual claimant may still have this onus, but it would hardly be onerous or challenged in the vast majority of cases; and it could be discharged by a simple statutory declaration or ticking boxes in a verified questionnaire post judgment on the common issues. That is one solution to get around the reverse onus problem involved in the control mechanism of a novus actus interveniens solution of the type discussed in HIH Insurance. And it cures the perceived problem in market-based causation referred to by Foster J in Masters at [392].

(Emphasis added.)

59    But I do not wish to now decide the course which must be followed in relation to establishing whether there are group members that fall within the exception for which Brambles’ contended. That decision should follow hearing the parties on the issues, rather by way of side wind in deciding the orders to be made to reflect the Court’s findings.

60    I consider it appropriate to answer Common Question 39, as follows (and the same in respect to Common Questions 40-42, with necessary changes).

Answer: The first applicant did not suffer damage that “resulted from” Brambles’ contraventions of s 674(2) of the Corporations Act within the meaning of s 1317HA of the Corporations Act. The second applicant did suffer damage that “resulted from” Brambles’ contraventions of s 674(2) of the Corporations Act within the meaning of s 1317HA of the Corporations Act, in the amount of $2,255.15. Group Members who purchased Brambles Shares in the period 16 November 2016 to 22 January 2017 (inclusive) have suffered damage that “resulted from” Brambles’ contraventions of s 674(2) of the Corporations Act within the meaning of s 1317HA of the Corporations Act, unless it is established with respect to a Group Member who purchased Brambles shares in that period that the Group Member was not misled or knew the information the subject of the non-disclosure and/or would have taken no notice had they known of the misleading conduct or of the information had it been disclosed.

That answer appropriately reflects the findings of the Court, but means the parties will be heard as to the appropriate course for the Court decide whether there are some group members that fall within the exception noted by Brambles.

2.    Timetabling

61    The next dispute between the parties concerns future timetabling. The applicants seek an order that the proceeding be listed for case management for the purposes of making orders in relation to the further conduct of the proceeding. Brambles resists that order on the basis that it intends to appeal the Court’s judgment, and it is not necessary or appropriate for the parties (or the Court) to incur the time and costs associated with further case management while the appeal is pending.

62    An appeal does not act as a stay of proceedings, nor is it sufficient of itself to demonstrate that a stay ought to be granted: Nadinic v Drinkwater [2019] NSWCA 142 at [10] (Gleeson JA). Unless Brambles applies for and is granted an order to stay the further conduct of the proceeding, the applicants’ case should be permitted to move forward.

63    Further, in my view there are case management steps that can productively be taken which will advance the case while any appeal is progressing. For example, Brambles seems intent on arguing the proposition that there are some group members who purchased Brambles shares during the period of its contravening conduct who were not misled or knew the information the subject of the non-disclosure and/or would have taken no notice had they known of the misleading conduct or of the information had it been disclosed. That issue requires determination.

3.    The Appropriate Order for Costs

64    The next dispute between the parties concerns the appropriate order for costs in the proceeding.

65    The applicants were successful in the case, both in relation to the individual claim of the second applicants and, more importantly, on the common questions. Brambles, however, seeks an order that it pay only 50% of the applicants’ costs, arguing that the applicants have been only partially successful and did not succeed on all bases - factual or legal - upon which it sought relief. For their part, the applicants seek payment of 100% of their costs, save for the costs of and associated with one of their expert witnesses, Mr David Lee.

3.1    Brambles’ submissions

66    Brambles made four submissions in support of its argument.

67    First, that the applicants won (at most) half of their case. Brambles submit that the applicants sought relief in relation to a 186-day period between 18 August 2016 and 20 February 2017, and the applicants’ case in respect of August, September and October 2016 was unsuccessful, and the case in respect of the FY19 Targets was unsuccessful. Brambles also notes that the first applicant’s individual claim was unsuccessful as she did not acquire her shares in the period in which Brambles was found to have engaged in contravening conduct.

68    Brambles made an approximate estimate of the time and cost spent on those parts of the case in which the applicants were unsuccessful, and submitted their estimation that (putting introductory and general observations to one side) 1,891 paragraphs of the reasons for judgment dealt with and rejected the applicants’ claims in relation to the period 18 August 2016 to 15 November 2016, and 23 January 2017 to 20 February 2017 (J [277]-[2106], [3904]-[3966]. It says that, by contrast, the Court spent 1,793 paragraphs dealing with it questions of liability in relation to the period on which the second applicants (but not the first applicant) succeeded (J [2107]–[3900]), and 197 paragraphs dealing with causation, loss and damage (J [3971]–[4168]).

69    Brambles accepts that some of the factual matters in the period 18 August 2016 to 15 November 2016 would in any event have been relevant background for the allegations on and from 16 November 2016. But it says that if that was how those matters were put before the Court those matters would undoubtedly have taken a much less of the parties’ and the Court’s time.

70    Second, and relatedly, Brambles argues that the applicants’ case from 18 August 2016 was “always weak” and “barely maintainable”, and notes that when the proceeding was commenced the applicants had confined their claim to a later period. Brambles also notes that during the trial the Court expressed the view that Brambles’ budget as at 18 August 2016 was not unreasonable, and senior counsel for the applicants said that that accorded with the views of the applicants’ legal representatives. Brambles submits that the applicants “made an exaggerated claim which … occupied a significant proportion of the proceedings”, which should find reflection in the order for costs.

71    Third, Brambles submits that until closing submissions the applicant’s case rested heavily on the evidence of Mr Lee, to which the Court gave no weight. As a result, the applicants incurred costs and required Brambles to incur costs in relation to an important witness whose evidence was entirely disregarded by the Court. It is unnecessary to deal with this submission because the applicants accepted that they should not receive their costs of an associated with the evidence of Mr Lee. Accordingly, that order should be made. Brambles does not argue that it should be paid its costs of responding to Mr Lee’s evidence.

72    Fourth, Brambles contends that the applicants abandoned or did not substantively press other aspects of their pleaded case, but only at a point where Brambles had incurred the cost of responding to that pleaded case. The applicants abandoned their “Alternative Information” continuous disclosure case at trial (J [71]). And they did not make substantive submissions in support of their allegations regarding the Price Representations, Costs Representations and Medium-Term Targets Representations, albeit without formally abandoning those claims. As a result, Brambles incurred costs in responding to a case, and the applicants incurred costs in advancing a case, that was not pressed in closing submissions.

73    Brambles submits that its first two points are its most important; namely, that the applicants won (at most) half of their case, and that large parts of their unsuccessful case were barely maintainable. But it argues that the fate of Mr Lee’s evidence and the applicants’ conduct in relation to the claims that were formally or effectively abandoned must also be factored into the evaluative assessment of what is fair and reasonable in the circumstances of the case. It submits that the Court should find that a 50% reduction in the applicants’ costs is fair and reasonable. Brambles does not argue that it should be paid its costs of responding to claims which were formally or effectively abandoned.

74    Brambles set out the principles upon which it relied for its contention that, notwithstanding the applicants’ overall success in the case, the Court should exercise its discretion to order that the applicants recover 50% of the party-party costs they incurred. I have no quibble with the principles it expressed, but I take a different view of their application in the circumstances of the present case.

3.2    Consideration

75    The disposition of costs is within the general discretion of the Court: FCA s 43. The principles are well established. It is a broad discretion which “must be exercised judicially, not arbitrarily or capriciously or on grounds unconnected with the litigation, having regard to relevant principle and the justice of the case in all the circumstances”: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Mukiza [2022] FCAFC 105 at [4] (Markovic, Thawley and Cheeseman JJ).

76    Ordinarily, costs follow the event and a successful litigant will receive costs in the absence of special circumstances justifying some other order: Ruddock v Vadarlis (No 2) [2001] FCA 1865; 115 FCR 229 at [11] (Black CJ and French J); Gray v Richards (No 2) [2014] HCA 47; 252 CLR 601 at [2] (French CJ, Hayne, Bell, Gageler and Keane JJ).

77    Against that backdrop, relevantly to the present case, the principles provide:

(a)    Where a litigant has succeeded only upon a portion of the claim, the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which he or she has failed: Costs may be apportioned according to success or failure on particular distinct or severable issues: Vadarlis at [11], [15].

(b)    Within the general discretion to award costs, costs may be refused where the applicants have made an exaggerated claim which has occupied a significant proportion of the proceedings and has succeeded only on a minor aspect of its original claim: Vadarlis at [15].

(c)    The success or failure of the relevant party is the starting point in the consideration of the question of costs, but a successful party might be deprived of costs (or even ordered to pay the costs of the other side, for which there was no application here) in at least three distinct categories of situation, being where:

(i)    the applicants have been only partially successful in that it has not obtained all of the relief sought;

(ii)    where a party has succeeded in obtaining the relief sought, but has not succeeded on all bases (factual or legal) upon which it sought such relief;

(iii)    that result is appropriate having regard to a consideration of the successful party’s conduct of the case,

: Queensland North Australia Pty Ltd v Takeovers Panel (No 2) [2015] FCAFC 128; 236 FCR 370 at [11] (Dowsett, Middleton and Gilmour JJ).

(d)    Where there are competing considerations, the Court’s exercise of its costs discretion “will reflect a broad evaluative judgment of what justice requires”: Gray at [2].

78    The applicants accepted that it is appropriate to order that they not recover their costs of and associated with the evidence of Mr Lee. For the following reasons I have concluded that (after the reduction for Mr Lee’s evidence) it is appropriate to order Brambles to pay all of the applicants’ party-party costs, as assessed or agreed. I should note that the applicants’ recoverable costs must take into account that they are not entitled to recover party-party costs from Brambles’ where those costs are “unnecessary or excessive duplicated costs”, because two firms of solicitors were permitted to act for the applicants in the consolidated proceeding: see Southernwood v Brambles Limited [2019] FCA 1021; 137 ACSR 540 at [12] (Murphy J) (Consolidation Ruling), and order 16 of the orders made on 8 May 2019.

79    First, the starting point is that the applicants should have their costs given they have been successful in establishing each of their pleaded causes of action of misleading or deceptive conduct and breach of the continuous disclosure regime, and in establishing causally connected loss in relation to both claims.

80    Second, Brambles sought to characterise the result in the proceeding as a small victory for the applicants in the overall scheme of the case, so as to justify an order to allow the applicants to recover only 50% of the costs they incurred in achieving that result. Contrary to Brambles’ submissions, the applicants enjoyed substantial success in the proceeding. They succeeded in establishing that Brambles engaged in misleading or deceptive conduct and contravened its continuous disclosure obligation for a period of 68 days, that Brambles’ contraventions resulted in causally connected loss of $1.57 per share, and later $1.85 per share (J [4167]) by the (as I infer) likely large number of group members who acquired Brambles shares in the 68-day window of contravening conduct. It seems likely that in aggregate the damages will be substantial.

81    Third, this is not a case where it is appropriate to fillet the applicants’ success by reference to the fact that they pleaded contravening conduct over a 186-day period between 18 August 2016 and 20 February 2017, and won their pleaded causes of action in relation the 68-day period between 16 November 2016 and 20 January 2017. To approach the costs incurred in that way would be to fundamentally misunderstand the way the case was conducted by the applicants and defended by Brambles.

82    The applicants’ claims of misleading or deceptive conduct and breach of the continuous disclosure regime on which they were successful on and from 16 November 2016 were deeply rooted in the evidence regarding earlier periods of time, going back to at least February 2016. In substance, the applicants’ case was that Brambles misled the market by failing to correct representations conveyed by statements it made to the market, or withheld information from the market which was material to the price of Brambles shares, at the beginning of and throughout the Relevant Period.

83    The two main planks to the applicants’ case were allegations that:

(a)    in the period from February 2016 to late June 2016 Brambles prepared and set the US Pooled and CHEP NA FY17 budgets, which were based in unreasonable assumptions and aggressively stretched and therefore unlikely to be achieved, and that the Group FY17 budget failed to adequately take into account risks which were identified in the US Pooled and CHEP NA FY17 budget submissions. That was alleged to mean that, as at 18 August 2016, 20 October 2016 and/or 16 November 2016 and thereafter until Brambles withdrew the FY17 Guidance and the FY19 ROCI Target, Brambles did not have reasonable grounds for providing or maintaining that earnings guidance; and

(b)    in the period from 1 July 2016 to 16 November 2016, US Pooled and CHEP NA materially underperformed against budget in Underlying Profit and sales revenue, and it was unlikely that those businesses would recover in 2H17 so as to achieve their Underlying Profit and sales revenue budgets by the end of FY17. On top of the aggressive and stretched budgets, that was alleged to mean that, as at 18 August 2016, 20 October 2016 and/or 16 November 2016, and thereafter until Brambles withdrew the FY17 Guidance and the August ROCI Forecast, Brambles did not have reasonable grounds for providing or maintaining that earnings guidance.

84    The evidence in the case regarding:

(a)    the period from February 2016 to late June 2016 when the US Pooled, CHEP NA and Group FY17 budgets were developed and set;

(b)    the giving and reaffirmation (or maintenance) of the FY17 Guidance and the August ROCI Forecast on 18 August 2016, 20 October 2016 and 16 November 2016; and

(c)    the period from 1 July 2016 to 31 October 2016 when US Pooled and CHEP NA materially underperformed against budget (which underperformance washed through to CHEP Global and the Group),

was relevant to the pleaded contraventions at each point during the Relevant Period.

85    The following examples suffice.

86    First, the evidence in relation to the budget setting period from February 2016 to late June 2016 was relevant to the alleged contraventions at each pleaded date. The Court found that over that period Brambles developed and set FY17 budgets for US Pooled and CHEP NA which were based in unreasonable assumptions, that those budgets were stretched to near the limit of achievability, that those budgets were more in the nature of targets than a best estimate of the likely outcome, and that the Group FY17 budget did not adequately take into account the net risks identified in the US Pooled and CHEP NA budget submissions (see in relation to the August Representations: J [1073]-[1074]). Those findings were material to the conclusion as at 20 October 2016 that Brambles was approaching a precipice in relation to the existence of reasonable grounds for the FY17 Guidance (J [2067]), and that as at 16 November 2016 Brambles had gone over the precipice; i.e., there were no longer reasonable grounds for the Underlying Profit growth portion of the FY17 Guidance (J [2889], see generally [2848]-[2889]).

87    Second, the evidence of material Underlying Profit and sales revenue underperformance against budget by US Pooled and CHEP NA in the period from July 2016 to 31 October 2016 was relevant to the pleaded contraventions at each point during the Relevant Period (although in relation to the alleged contraventions on 18 August 2016 only the July 2016 results were relevant, and in relation to the alleged contraventions on 20 October 2016 only the July, August and September 2016 results were relevant). As noted above, the Court found that, as at 20 October 2016, Brambles was “approaching the precipice in relation to whether it would achieve the FY17 Guidance in relation to Underlying Profit growth” as the result of a “three-month trend in under-budget sales and over-budget direct costs in US Pooled”. Because of the headroom between the Group FY17 budget and the FY17 Guidance, including through the $10 million contingency, that did not establish that Brambles lacked reasonable grounds for the FY17 Guidance as at that date (J [2073]-[2074], [2090]-[2095]). But by 16 November 2016, “the position for the Group was markedly worse” (J [2849]) and by that date the Court found that Brambles did not have reasonable grounds for the FY17 Guidance (J [2889]).

88    Thus the evidence regarding Brambles’ position vis-à-vis the FY17 Guidance as at 16 November 2016, was deeply rooted in the evidence regarding the budget-setting process and the sales revenue and Underlying Profit underperformance against budget by US Pooled and CHEP NA over the course of FY17. As the applicants submitted, the Court could only make sense of the evidence about Brambles’ position as at 16 November 2016 through an understanding of the evidence regarding the position when the US Pooled, CHEP NA, CHEP Global and Group FY17 budgets were set in late June 2016, when those budgets were finally approved and the FY17 Guidance was first announced on 18 August 2016, and after three months of underperformance by US Pooled and CHEP NA as at 20 October 2016.

89    In my view the costs incurred in relation to:

(a)    the period from February 2016 to late June 2016 when the FY17 budgets were set; and

(b)    the period from 1 July 2016 to 16 November 2016 when US Pooled and CHEP NA performance against budget continued to deteriorate,

were all costs incurred in relation to the contraventions found. All, or at least the great majority, of the evidence led and contested in relation to the contraventions found was required to be adduced whether or not the contravening conduct was alleged to commence on 18 August, 20 October, or 16 November 2016.

90    I do not accept Brambles’ argument that some of the evidence of factual matters in the period 18 August 2016 to 16 November 2016 would have been just “relevant background” had the applicants pleaded the contravening conduct to commence on 16 November 2016.

91    That contention does not take into account that the evidence in relation to the US Pooled and CHEP NA budget setting process February 2016 to late June 2016 was fundamental to the applicants’ case and material to the Court’s findings as at 16 November 2016. The same can be said of the evidence of sales revenue and Underlying Profit underperformance against budget by US Pooled and CHEP NA from 18 August to 16 November 2016. Whether the contravening conduct was pleaded to commence from 18 August, 20 October, or 16 November 2016, that evidence was never going to be mere background. It was fundamental to the applicants’ case and material to the Court’s findings as at 16 November 2016 and also as at 21 December 2016.

92    Nor do I accept Brambles’ contention that (had the applicants pleaded the contravening conduct to commence on 16 November 2016) the evidence about the earlier periods in time “would undoubtedly have taken up much less of the parties’ and the Court’s time”. On top of the matters referred to above, that contention sits poorly in Brambles’ mouth. This was large and strenuously contested litigation. This is not a criticism of Brambles’ defence of the proceeding, but it took every point. I do not accept that the trial would have been materially shorter whenever the contraventions were pleaded to have commenced. Even following receipt of the December FY17 results on 5 January 2017, which represented six months of underperformance against budget, Brambles continued to resist the proposition that it lacked reasonable grounds for the FY17 Guidance (J [3747]-[3749]). The Court found that by that point Brambles’ stance was reminiscent of the Black Knight in Monty Python and the Holy Grail (J [3849]). That also goes to show the lack of merit in Brambles’ contention that the evidence would have been less and the applicants’ costs lower had the contraventions been pleaded to commence on 16 November 2016.

93    Third, I do not accept Brambles’ contention that applicants should recover only 50% of their costs because the case from 18 August 2016 was “always weak” and “barely maintainable”.

94    As explained above, the first answer to that contention is that the evidence necessary to prove the applicants’ case as at 18 August 2016 and 20 October 2016 was also necessary to prove the applicants’ case as at 16 November 2016. Those costs were not incurred unnecessarily or wasted.

95    Second, I do not accept Brambles’ characterisation of the applicants’ case from 18 August 2016 as “always weak” and “barely maintainable”. As previously noted, the Court found that, as at 18 August 2016, the US Pooled and CHEP NA FY17 budgets were based in unreasonable assumptions, those budgets were stretched to near the limit of achievability, those budgets were more in the nature of targets than a best estimate of the likely outcome, and that the Group FY17 budget did not adequately take into account the net risks identified in the US Pooled and CHEP NA budget submissions (J [1073]-[1074]). That was not, however, enough for the applicants to show that the FY17 Guidance did not have reasonable grounds (J [1109]).

96    Nor is it clear to me what Brambles meant in stating that the case from 18 August 2016 was “always weak” and “barely maintainable”. The evidence of sales revenue and Underlying Profit underperformance against budget by US Pooled and CHEP NA, and as a result, by the Group, was a continuum over time. As previously noted, the Court found that by 20 October 2016 Brambles was “approaching the precipice in relation to whether it would achieve the FY17 Guidance in relation to Underlying Profit growth” as the result of a “three-month trend in under-budget sales and over-budget direct costs in US Pooled” (J [2067]). And by 16 November 2016 “the position for the Group was markedly worse” (J [2849]).

97    Brambles was correct in noting that during the trial the Court expressed the view that Brambles’ budget as at 18 August 2016 was not unreasonable, and that senior counsel for the applicants said that accorded with the views of the applicant’s legal representatives. What Brambles did not say was that the Court made that remark, and the applicants’ counsel made that concession, on the penultimate day of the five-week trial, during oral closing submissions (T 2499: 37 -2501: 34). That provides little support for Brambles’ contention that the case from 18 August 2016 was “always weak” and “barely maintainable”.

98    Fourth, Brambles submitted that the applicants “made an exaggerated claim which … occupied a significant proportion of the proceedings” citing Black CJ and French J in Vadarlis at [15]. That was not, however, a complete citation. There, the Full Court stated the following principle:

Usually the circumstances in which a successful party is denied all or part of its costs have to do with its conduct of the proceedings. The [rules of Court] make specific provision for the case in which a judgment is obtained which is not more favourable than terms previously offered by a respondent: O 23 r 11. Within the general discretion to award costs, costs may be refused where, for example, the applicant has made an exaggerated claim which has occupied a significant proportion of the proceedings and has succeeded only on a minor aspect of its original claim. Costs may be apportioned according to success or failure on particular distinct or severable issues … And a trial judge may award only a proportion of the successful party’s costs if the conduct of that party at trial was such as to unreasonably prolong the proceedings.

(Emphasis added, citations omitted.)

Brambles’ submissions left out the part of that principle which provides that “the applicant had succeeded only on a minor aspect of its original claim”. That was not the result in the present case. The applicants’ substantial success in the proceeding cannot reasonably be described as being “on a minor aspect” of their original claim.

99    Further, having regard to the rest of that passage in Vadarlis (at [15]), this is not a case where the costs may be apportioned according to success or failure “on particular distinct or severable issues”. The issues are not distinct or severable; they are closely inter-related and much of the evidence necessary for the applicants to establish the alleged contraventions as at 18 August, 20 October, and 16 November 2016 was substantially the same.

100    Fifth, Brambles correctly noted the applicants abandoned their Alternative Information continuous disclosure case in the course of the trial, and that they did not make substantive submissions in support of their allegations regarding the Price Representations, Costs Representations and Medium-Term Targets Representations, albeit without formally abandoning those claims. It is open to exercise the discretion in relation to costs so as to reduce the applicants’ recoverable costs on those grounds.

101    Several matters, however, militate against that in the circumstances of the case.

(a)    First, I infer that the abandoned Alternative Information continuous disclosure case was pleaded to address Perram J’s observations in Grant-Taylor v Babcock & Brown Limited (In Liquidation) [2015] FCA 149; 322 ALR 723 at [157]-[158] which provided that an applicant alleging that a company was “aware” of information constituting an opinion was required to prove that the company had actually formed the opinion. And I infer that the applicants abandoned their Alternative Information case because of the decision to in Crowley v Worley Limited [2022] FCAFC 33; 293 FCR 438 at [172]-[173] (Jagot and Murphy JJ, Perram J agreeing at [5]) that held that those observations in Grant-Taylor were wrong. I can see no good reason why the applicants should not be entitled to recover their costs in relation to their Alternative Information argument, when they later abandoned it following clarification of the law.

(b)    Second, the abandoned Alternative Information continuous disclosure case was based in the same evidence that the applicants relied on to establish their primary continuous disclosure case, and the costs associated with that issue are not distinct or severable, except perhaps at the edges. Further, such costs are likely to be very minor in the scheme of the proceeding.

(c)    Third, little or no evidence was adduced solely in relation to the Price Representations, Costs Representations and Medium-Target Representations (outside of the FY19 ROCI target), and those matters were given little attention in opening and closing submissions, which centrally focussed on the FY17 Guidance, and to much lesser extent the FY19 ROCI Target. The costs associated with those claims are not distinct or severable, and they are also likely to be very minor.

(d)    Fourth, in my view, the costs associated with the abandoned Alternative Information case and the costs claimed in respect to the Price Representations, Costs Representations and Medium-Target Representation are likely to comprise a vanishingly small part of the applicants’ costs. Such minor costs cannot readily be approached on the basis of some rough percentage reduction in the applicants’ recoverable costs which seem likely to be in the order of $20 million.

4.    Whether a Lump-Sum Costs Assessment is Appropriate

102    The final dispute between the parties concerns the applicants’ application for a lump-sum costs assessment.

103    The applicants submit that a taxation of costs in this complex litigation, which was commenced in August 2018, would be onerous in the extreme. They rely upon the Federal Court Costs Practice Note, GPN-Costs, (Practice Note) at [3.3], which provides:

… [T]he Court’s preference is to avoid, where possible, the making of costs orders that lead to potentially expensive and lengthy taxation of costs hearings. …

104    Brambles accepts that the Court’s general preference, particularly in lengthy commercial litigation, is to order that costs be assessed on a lump-sum basis: Practice Note [4.1]. It submits, however, and I accept, that such an order “is not mandated in all cases”, and “it is a matter for the Court to exercise its discretion as appropriate” citing Coshott v Prentice (No 2) [2018] FCAFC 221 at [5] (Kerr, Farrell and Gleeson JJ). Brambles argues that an important consideration is “whether the lump sum costs process will provide an outcome that is logical and reasonable and sufficiently accurate to do justice between the parties”, citing Jenkins Sh v Australia Council for the Arts [2024] FCA 309 at [46] (Horan J). It further submits that a lump-sum costs assessment will necessarily have regard to the fact that, while the lump-sum procedure is flexible, it is necessarily more impressionistic than traditional taxation, citing Paciocco v Australia and New Zealand Banking Group Ltd (No 2) [2017] FCAFC 146; 253 FCR 403 at [17]-[18] (Allsop CJ, Besanko and Middleton JJ) and Sandalwood Properties Ltd (Subject to a Deed of Company Arrangement) v Huntley Management Ltd (No 2) [2019] FCA 647 at [10] (Colvin J).

105    On Brambles’ argument, the central reason why, in the circumstances of the present case, it is not appropriate to make orders to assess the applicants’ costs a lump-sum basis is that the applicants were represented by two firms of solicitors from 28 June 2019 and throughout the trial. Brambles noted that in making orders to consolidate the competing class action proceedings, I said that I had “no difficulty in accepting that allowing two firms of solicitors to jointly represent the applicants involves a risk of duplicated legal work and higher costs than if they are represented by one firm of solicitors”: Consolidation Ruling at [60]. I concluded, however, the risk of duplicated legal work and higher costs could be adequately managed by the applicants’ solicitors’ “Cooperative Litigation Protocol”, which, among other things, provided for:

(a)    the establishment of a joint Litigation Committee; and

(b)    the appointment of a costs referee to:

(i)    conduct an inquiry every four months regarding whether there was unnecessary or excessive duplication in the work being performed by the applicants’ solicitors; and

(ii)    provide confidential written reports to the applicants’ solicitors and the Court every four months stating the referee’s opinion on whether there was unnecessary or excessive duplication and including any recommendations for reducing duplication where identified.

: Consolidation Ruling at [11]-[12], [60(c)].

106    Brambles submits that what is critical for present purposes is that it has no information about the cost referee’s inquiries, it has not been provided with copies of the reports that were presumably provided by the costs referees to the applicants and the Court. It says that it continues to have concerns about increased costs resulting from duplication. It also says that under the terms of the consolidation orders, the applicants are entitled to keep the costs referee’s reports confidential but doing so will mean that if the Court makes an order for a lump-sum assessment, Brambles will have no way of testing and making submissions about duplication because it will be denied access to information that it needs to determine whether there has been a material duplication of costs, and if so, to address that in submissions.

107    Brambles contends that this is not a matter that can be addressed in the course of a lump-sum assessment, and the question of duplication of costs requires close enquiry of all of the applicants’ costs and that the only way that can occur is through a traditional taxation.

108    I do not accept Brambles’ submissions. This case is a paradigm case for use of the lump-sum costs assessment regime. If the costs assessment is undertaken through a traditional taxation, it is likely to be enormously onerous, time-consuming and expensive. That outcome must be avoided if at all possible whilst doing justice between the parties.

109    Brambles’ contention that, if a lump-sum costs assessment order is made it will be denied access to the information that it needs to determine whether there has been a material duplication of costs was met by the applicants. They submitted that, as required by the consolidation arrangements, they had retained a cost consultant to supervise and report on the applicants’ legal costs, and that they will provide those reports to Brambles as annexures to their Costs Summary to be filed pursuant to the Practice Note. That will address Brambles’ central concern. If Brambles raises further legitimate concerns, it will be possible to craft orders to address them, which will operate within the lump-sum costs assessment process.

110    I also note that the lump-sum costs assessment process should not be dragged down a rabbit-hole of looking for any extra costs arising from the Court allowing two firms of solicitors to act for the joint applicants. The consolidation orders, and the related costs control regime, was ordered because Brambles was facing two competing class actions. In determining that issue the Court was not choosing between perfect results in terms of costs efficiency. One possible result in the multiplicity dispute was that both proceedings could be permitted to run side by side (e.g., McKay Super Solutions Pty Ltd (Trustee) v Bellamy’s Australia Ltd [2017] FCA 947), which is likely to have involved greater applicants’ costs than those provided for under the consolidation orders. Another possible result was that one case would be stayed and that the firm of solicitors for the continuing proceeding would be required to expend costs to perform work which had already been undertaken by the other firm, which would also have involved increased costs. The consolidation orders that were made sought to protect Brambles from “unnecessary or excessive duplicated costs” arising from the consolidated proceeding having two sets of solicitors: Consolidation Ruling at [12], and order 16 of the orders made on 8 May 2019. The orders for a lump-sum costs assessment should provide that such costs are not recoverable from Brambles.

111    I have made orders for a lump-sum costs assessment but have not set the dates for the parties to provide their respective Costs Summary or Costs Response or any ancillary orders. The parties are directed to endeavour to agree the appropriate orders and inform Chambers by 15 June 2026 of their agreed position, or absent agreement their respective positions and submissions (no more than half a page) as to the basis for their position.

Associate:

Dated:    3 June 2026