BHP Group Limited v Impiombato & Anor

[2022] HCATrans 124

[2022] HCATrans 124

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M12 of 2022

B e t w e e n -

BHP GROUP LIMITED

Appellant

and

VINCE IMPIOMBATO

First Respondent

KLEMWEB NOMINEES PTY LTD (AS TRUSTEE FOR THE KLEMWEB SUPERANNUATION FUND)

Second Respondent

KIEFEL CJ
GAGELER J
GORDON J
EDELMAN J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON TUESDAY, 9 AUGUST 2022, AT 10.00 AM

Copyright in the High Court of Australia

MS W.A. HARRIS, QC:   If the Court pleases, I appear in that matter on behalf of the appellant with my learned friend, MS J.E. MOIR.  (instructed by Herbert Smith Freehills)

MR J.T. GLEESON, SC:   May it please the Court.  I appear with MR A.D. POUND, SC and MS E. LEVINE for the respondents.  (instructed by Phi Finney McDonald and Maurice Blackburn Lawyers)

KIEFEL CJ:   The record will show that Justice Gageler is sitting remotely.  Yes, Ms Harris.

MS HARRIS:   If the Court pleases.  The role of Part IVA of the of the Federal Court of Australia Act is to expand the universe of persons whose claims may be adjudicated by the Federal Court whose rights may be bindingly affected and indeed extinguished by such adjudication, whether they are aware of it or not.  Part IVA legislates centrally with respect to those persons whom it defines as group members.  The question in this proceeding is and was:  on a proper construction of the legislation, having regard to the common law and statutory constructional norms on which we rely, who may be nominated by a representative party as a group member, and thereby subjected to the court’s adjudication and the provisions of Part IVA?  Anyone in the world, or persons within the Territory.  Perhaps, self-evidently, that question is not answered in the circular fashion adopted by the Full Court embraced by the respondents, namely, anyone with a claim potentially subject to the subject matter jurisdiction of the Federal Court.

Can I commence by taking the Court to the provisions of Part IVA, which is at the third – at third line in the index, page 164.  Part IVA consistently distinguishes between representative parties, as the persons who submit themselves to the jurisdiction of the court and group members, who are the passive and potentially unknowing subjects of the court’s adjudication.  As we will see, it is group members that are the central concern of Part IVA.  The first provision is section 33A, at page 164, and it proffers two relevant definitions.  The first is:

group member means a member of a group of persons on whose behalf a representative proceeding has been commenced.

The second – used in contradistinction – is:

representative party –

That is, the:

person who commences a presentative proceeding.

Sections 33C and 33D, on the next page, then engage with the definition of “group member” by identifying the persons who can be a representative party and the persons on whose behalf such a party can commence representative proceedings.

Section 33E, on the next page, provides that no consent is required for a person to be a group member.  Moving to section 33H, on the next page, section 33H requires the representative party, on the one hand, to identify group members by description only in its application to the Court.  That provision is important when we come to section 33ZB and the description of group members may be altered pursuant to section 33K.

Section 33J is concerned with the right of group members to opt out.  That provision critically engages with sections 33X and 33Y, which are found at pages 174 and 175.  These provisions provide for the occasion and manner in which notices must be given to group members – including with respect to the commencement of the proceeding, their rights to opt out and any application for approval of a settlement which, by force of section 33ZB, would bind them and, effectively, extinguish any claims of theirs, pursued on their behalf, in the proceeding.  Can I ask the Court to note section 33Y(4), which provides a suggestion with regard to the publication of the notice?  It says:

An order under subsection (3) may require that notice be given by means of press advertisement, radio or television broadcast, or by any other means.

That is more relevant, one would suggest, of the legislative focus on local distribution rather than international distribution.  Section 33Z and section 33ZA empower the Court to make an award of damages for group members and to make orders facilitating distribution to group members, including establishment by a group member of his or her entitlement to a share of the damages.  Section 33ZB, on page 178, is critical.  It provides:

A judgment given in a representative proceeding:

(a)must describe or otherwise identify the group members who will be affected by it; and

(b)binds all such persons –

being group members:

other than any person who has opted out of the proceeding under section 33J.

Now this section assumes particular significance in the context of
this case.  It is essential to the operation of the Part and has been repeatedly so described by members of the Federal Court.  It is essential to the implementation of the policy to which the Part seeks to give effect.

While the respondent may be required to meet the claims of persons not before the Court, section 33Z seeks to ensure finality and certainty by erecting what has been described in this Court as a statutory estoppel.  The provision is of significance here because, while the statutory estoppel it erects is effective within Australia, it is much less likely to be effective outside.

Group members are not required to submit to the jurisdiction of the Court and, indeed, the respondents in this case, at paragraph 34 of their submissions, quite properly concede that section 33ZB cannot operate, so that the judgment of the Federal Court would bar proceedings outside Australia in a foreign court.  And we will come back to this point.

Now, other provisions follow in the Part, including 33ZE, page 181, which tolls the limitation period applicable to any group member to which the proceeding relates.  So, Part IVA is a comprehensive suite of provisions ‑ ‑ ‑ 

GORDON J:   Ms Harris have you finished your dealing with those provisions, or do you propose to come back to them?

MS HARRIS:  I was not, your Honour.

GORDON J:   Could I just ask one question about the construction that you have just proffered?  Group member is defined, as you have pointed out, to be:

a member of a group of persons –

and the persons to whom it applies are those set out in section 33C.  At some point could you just explain to me on your construction how you end up with, as I understand it, two different meanings to the word “person” in 33C?

MS HARRIS:   I will come to it, your Honour.  It is one of the things that our learned friends rely on as saying the presumption is displaced.  The short answer, so I do not keep your Honour waiting, is that the legislation distinguishes between a person who is a representative party and a person who is a group member, and a person who is a representative party submits themselves to the jurisdiction of the Federal Court and thereby comes into the Territory in a way in which a non‑resident group member does not.

GORDON J:   Is that right for the purposes of 33C(1)(a), (b) and (c) where it is talking about:

7 or more persons have claims against the same person –

I mean, on your construction, you have read one as having some territorial limit and the other not.

MS HARRIS:   The first thing I do, your Honour, is read it subject to 33A.

GORDON J:   But 33A just picks up by reference to “group member” those people that are in 33C, does it not?

MS HARRIS:   Indeed, it divides them into two categories, and the legislation does that very thing, it divides persons into two categories.  So, “person” is not used in a uniform sense throughout the legislation, it is used in category one with respect to the representative party.  That person is a representative party, and then there was another group of persons who are group members, and the legislation is clear in its intra‑territorial operation with respect to a representative party.

GORDON J:   I assume you will come to this as well, but for my part I would like you to explain how it is that that is the right starting point given Mobil?  In a sense, that if you read Mobil it may suggest that what you start with is the jurisdiction of the Federal Court, and the jurisdiction which is provided by reference to the 150 statutes picking up section 77 of the Constitution and therefore 75 and 76 may, in effect, provide the lens through which you enter.  I mean, this Court said, I think in Wigmans and also in BMW that Part IVA is procedural and not substantive, and so I wonder at some point whether you might also address that as well, please.

MS HARRIS:   I think – your Honour can pick me up at the end if I have not done it justice, your Honour, that will be a central concern of our submissions because that is what is put against us, that once the jurisdiction of the Federal Court is invoked, that is the end of the matter, and that effectively pushes the presumption to one side.  We will demonstrate for your Honour the fallacy in that reasoning, if your Honour pleases.  I think this engages with your Honour’s point.  To focus on the jurisdiction of the Court is not to focus on the right question for present purposes.

The question for present purposes is:  who may be nominated as a group member?  Which, of the persons in the world who have a claim, potentially, that is susceptible to the subject matter jurisdiction of the Federal Court, which persons in the world may be nominated as a group member?  And that is where we say the presumptions come in.  The presumptions are relevantly the common law presumption that says the persons, property and events in respect of which Parliament has legislated are limited to those in the territory over which it has jurisdiction.  So, prima facie, this legislation operates with respect to persons within this jurisdiction.  And I have ‑ ‑ ‑

EDELMAN J:   So the presumption you are relying upon, this presumption against extraterritorial operations, that concerns which dimension of jurisdiction.  Does it concern the geographic, the personal or the subject matter dimension of the jurisdiction?

MS HARRIS:   Jurisdiction is fundamentally territorial.  And, in fact, I think it was Lord Selborne who said all jurisdiction is territorial.  And so, the distinction that we draw here, your Honour, is that territorial jurisdiction, which is fundamentally geographic.

EDELMAN J:   Sorry.  Jurisdiction is territorial, but it has dimensions.  So, one dimension is the geographic dimension, which is, which territory does it operate over, another is which persons does it operate over, and another is which subject matter does it operate over.  The presumption usually applies in circumstances where the subject matter dimension of jurisdiction is overseas; so, where you would not usually construe or interpret legislation as applying to a subject matter that is happening out of the jurisdiction or out of the country.  But that is not this case.  So, this case is only concerned, as I understand it, with the personal aspect of – or the personal dimension of jurisdiction.

MS HARRIS:   And, your Honour, the personal aspect of jurisdiction has the geographic distinction that I have proffered.  The cases to which I take your Honour – and one of the first ones will be Meyer Heine.  The subject matter of that case was Australian.  There was no overseas subject matter that was appropriated by the legislation in that case, and yet the presumption applied.  The presumption applied to narrow, still, the operation of the statute so that it did not apply to acts done by persons outside the territory.  The distinction is a geographic one, and here the legislation, on our learned friends’ construction, reaches outside Australia and into the territory of another sovereign or state.

EDELMAN J:   But this is not – it does not do so in relation to acts done outside the territory of Australia.  It does so only in relation to persons who are outside the territory of Australia.

MS HARRIS:   Indeed, your Honour, and it affects their rights.  It reaches into the sovereign territory of another state and purports to affect the rights of persons there resident.

EDELMAN J:   But that is what we have service out rules for.

MS HARRIS:   But that is the point, your Honour.  There is no service out on group members.  And the reason ‑ ‑ ‑

GORDON J:   That is a different question, though.  This is the issue.  If you are looking at challenging – as I understand the way you have put it – this sort of extra‑territorial reach, you have got to go back to the reach about the rights created by the statutes giving the Court jurisdiction.

MS HARRIS:   It did.

GORDON J:   It is the way in which Kay’s Leasing looks at it – it says, I have got legislative power – does the legislation which gives me these rights within power.  You do not challenge any of that.  Now we are looking at the mechanism to bring those rights within the Federal Court jurisdiction.  They are given to the Federal Court, and these are procedures to make those able to be heard and determined.

MS HARRIS:   Your Honour, they are two separate things.

GORDON J:   They are two separate things ‑ ‑ ‑

MS HARRIS:  So, the first ‑ ‑ ‑

GORDON J:    ‑ ‑ ‑my concern is, you have merged them.

MS HARRIS:   No, our friends merged them, your Honour.  I am concerned to keep them quite distinct.  The first question is, is legislative competence.  That is not challenged here.  Your Honour is right.  There is no question that if the legislature here chose to legislate so as to reach in and affect the rights of persons in the UK, it could do so.

GORDON J:   And it does in this sense:  if the conduct is such – which is what Justice Edelman is putting to you – where the acts involve someone overseas but give rise to rights in Australia – and they do all the time – then they have got a right to bring an action in the Federal Court.

MS HARRIS:   But they do not.  But they do not bring an action in the Federal Court, and that is the very point that we make.  The only person who brings an action in the Federal Court is the representative party.  So, your Honour is perfectly right with respect to representative parties.  That is why there is no question here about the reach of the term “representative party” because that person chooses to incept a claim, chooses to invoke the personal and subject matter jurisdiction of the Federal Court.  This is the elision that is attempted by our learned friends and which we need to be very careful about.  No group member is a party to these proceedings – no group member.  No group member has come into the jurisdiction to submit to the jurisdiction to submit to the jurisdiction of the Federal Court.  No group member is someone over whom the Federal Court would otherwise enjoy person jurisdiction but for Part IVA.

STEWARD J:   Ms Harris, can I ask you a question, just to understand the detail of your argument.  What sufficient connection to territory must a person have in order to be an eligible group member?

MS HARRIS:   So, “connection to territory” is a term that is assayed by our learned friends and it is a slightly dangerous one for this reason, your Honour, because it tends to merge the question of constitutional competence with territorial operation.  Insofar as we are concerned with territorial operation, the territorial discrimen, we say, is residence.  That is the most convenient ‑ ‑ ‑

STEWARD J:   What is your definition of “residence”?

MS HARRIS:   “Residence” ‑ ‑ ‑

STEWARD J:   Bearing in mind that there is more than one.

MS HARRIS:   It is true, your Honour.  Again, I was going to come to it – and I will.  The question posited by the presumption is, what is inside the territory and what is outside the territory?  That is the line to be drawn.  What is inside and what is outside?

STEWARD J:   So, just – I am sorry about the detail.

MS HARRIS:   Not at all.

STEWARD J:   Would someone who spent 183 days in the territory be someone, on your view, that is eligible to be a group member?

MS HARRIS:   Well, that might be a question for the Court.  But courts routinely determine who is a resident and who is not.  And resident ‑ ‑ ‑

STEWARD J:   They do by reference to statutory criteria or double tax treaty criteria.  What is the criteria that we would use here?

MS HARRIS:   Very often, the statute does not proffer a definition.  And the concept of residence, your Honour – and I will come back to it, but the concept of residence, your Honour, was first used as a territorial discrimen – it might not have been the first use, but probably the most influential for present purposes, was first used as a territorial discrimen by Lord Justice James in Niboyet v Niboyet.  Your Honour might recall that that was a case about whether the French consul and his wife could be subject to the UK Marriage Act.  They were resident in the jurisdiction, but they were domiciled in France, and the argument was because they were domiciled in France, they could not be susceptible to that legislation, and it was their residence in the UK that ruled them in.

We apply exactly the same discrimen here, and I will give your Honours some references to various statutes which use the concept of residence without further elaboration.  And it is used conventionally in legislation of this type as, again, we will come to Professor Mulheron in her article about the legislative choices that are made with respect to resident and non‑resident group members, refers to numerous pieces of group‑action legislation which uses “residence”, unadorned by any definition, as the criterion.  But it is a concept which is well understood and conventionally applied.

But to fix on residence, which is our expression of the application of the presumption, should not be confused with what the presumption does.  The job of the presumption is to secure the intra‑territorial operation of a statue unless the Parliament makes a contrary intention clear, either expressly or impliedly.  And it sits next to a statutory expression of the same concept in section 21(1)(b) of the Acts Interpretation Act.  It says:

In any Act:

. . .

(b)references to localities jurisdictions and other matters and things shall be construed as references to such . . . things in and of the Commonwealth.

Now, our learned friends say the presumptions are not engaged here.  That proposition – as we read their written submissions, at least – depends on the first two sub‑propositions.  The first is that they seek to confine the common law proposition to cases where, on a literal reading – and this, I think, picks up something your Honour Justice Edelman said to me, where, on a literal reading of the statute, the provisions would be inconsistent with comity of nations or established rules of international law.  That is where it deals with subject matters over which some other sovereign properly exercises jurisdiction.

Now, that is too narrow a reading, but they deploy that approach for exactly the reason that your Honour Justice Gordon puts to me.  They say this part – and, in fact, they only focus on one provision, namely 33C, but we are beholden to look at the entire Part.  They say 33C is concerned with the institution of claims in the Federal Court, and that is not a matter over which some other sovereign properly has jurisdiction.  Well, they are right that that is not a matter over which some other sovereign properly has jurisdiction, but that is to ignore the entire effect of Part IVA and the job that it does.

EDELMAN J:   Is your submission about the presumption that the general rules of court in every State and Territory that provide for service out of the jurisdiction of process are necessary to rebut a presumption against extraterritorial operation of every piece of legislation?

MS HARRIS:   No, your Honour.

EDELMAN J:   So, those general rules of service out are not needed in case to make all other legislation operate in relation to persons that do not happen to be within the Territory?

MS HARRIS:   Your Honour, the Federal Court enjoys jurisdiction over the applicants in this case because, whether resident in Australia or not, they came within the Territory, presence in the Territory, and submitted to the jurisdiction of the court by initiating process.  It enjoys jurisdiction over the respondent not simply because the respondent is here but because the respondent appeared.  So, this is important, your Honour.  We are not just talking about subject matter jurisdiction, we are talking personal jurisdiction and ‑ ‑ ‑

EDELMAN J:   Well, it depends what you mean by personal jurisdiction.  I mean, do you mean, by “personal jurisdiction”, jurisdiction over persons or jurisdiction over subject matter or jurisdiction over Territory?  I think you mean jurisdiction over persons, do you not?

MS HARRIS:   The jurisdiction to adjudicate the claims of persons, and just because a court enjoys subject matter jurisdiction with respect to a claim does not give it jurisdiction to adjudicate that claim.  Chief Justice Gleeson could not have been clearer about that in Mobil.  Courts do not have a roving commission to go out and find interesting things over which they might have subject matter jurisdiction.  They can only adjudicate cases which are brought to them.  No group member is a party to this proceeding.  No group member brings a claim.  No group member subjects itself, him or herself, to the personal jurisdiction of the in personam jurisdiction of the Federal Court.  So, the only way in which those claims can be adjudicated is if the legislation operates to enable the court to adjudicate those claims even though they have not sought the court’s adjudication.

This is the thing that we do not see in the submissions that are – the distinction that we do not see in the submissions of our learned friends.  If we read the submissions of our learned friends, they put representative parties and group members in the same category.  They are fundamentally different because one of them invokes the jurisdiction of the court, comes within the jurisdiction to do so, the other does not.

So, the question in this proceeding, and it is a very simple one – accepting that Part IVA allows the court to adjudicate the claims of persons not before it ‑ the question which must be answered is:  who is embraced by that cohort?  Is it everyone in the world or is it persons within the Territory?  Now, if it is everyone in the world it must be because the legislature has expressed an intention that it can reach over territorial boundaries and bindingly effect the rights of persons in another state, in another sovereign state.

EDELMAN J:   Is that because they are in a different state or is it because they have not consented to the authority of the court being exercised?

MS HARRIS:   It is because they are in a different state, your Honour.  All jurisdiction is territorial.

EDELMAN J:   So, the points you made earlier about the fact that they have not come before the court or consented to the authority of the court, that actually does not matter.

MS HARRIS:   It does matter, your Honour, because our Parliament is centrally concerned with persons within the territory.  It has the power to have the Federal Court adjudicate the rights of persons not before the court because curial jurisdiction – legislative jurisdiction – is territorial.  Our Parliament has a perfect entitlement – quite consistently with comity of nations – to do that.  It is a very different matter if our parliament says, now I am going to get the Federal Court to adjudicate the claims of people in Brazil who may never know that these proceedings have been initiated, who have no role in them, who are not a party to them, who have not submitted to them. 

The distinction is a meaningful one because – as Dicey’s Rule 36 now, I believe, Rule 33, exposes – while the judgment of the Federal Court will be effective within this territory – and it will bind people within this territory – and it will stop people bringing proceedings in this territory, once a judgment is given – it will not do so with respect to persons outside the territory.

GORDON J:   But, does that not work against you?  That works very much against you because that is the point – it is a judgment for an Australian law and the extent to which it is able to be enforced overseas is a matter for foreign law, in the foreign country.  So, it cuts against the proposition that there is some difficulty here, is there not?

MS HARRIS:   On the contrary, your Honour.  It creates a difficulty.  So, there are two problems with respect to what your Honour said.  Firstly, your Honour inverts the presumption.  So, the presumption is that, in its application to group members, Part IVA intends to deal with persons within the territory – full stop.  So, it ‑ ‑ ‑

GORDON J:   I will ask you about that in a moment – that proposition.  We will come back to testing that proposition in a moment.  But, let us assume that that is right.

MS HARRIS:   That that is the proper operation of the presumption – that it is presumed to operate with respect to persons in the territory.

EDELMAN J:   I do not even understand what that means.

GORDON J:   No, nor do I.

EDELMAN J:   What do you mean by “persons within”?  Persons who are domiciled in the territory?  Persons who are ordinarily resident within the territory?  Persons who are permanently resident in the territory?  Or – what do you mean by “in” the territory?  Persons who are on holiday?

MS HARRIS:   Your Honour, these are not concepts which have troubled this Court in terms of their understanding.  Can I give your Honour a few references?

GORDON J:  Just before you do that, what I am concerned about is, if I accepted everything that you said and I got to this question about residency, I have practical problems with it.  At what point in time?  When the cause of action accrued?  When the proceedings commenced?  When they opt out?  On judgment?  Do I have a trial within a trial?  These were supposed to be mechanisms to facilitate and make easier that which already existed, so to add to the concerns about this idea of residency is just the practical difficulty of doing it.

MS HARRIS:   It is much more difficult, your Honour.  These are distinctions which are conventionally drawn in other statutes dealing with group proceedings.  This is resident, non-resident, it is a conventional discrimen used for the very purpose of ruling in people within the territory and ruling out people outside the territory.  Perfectly conventional discrimen.

Now, it actually makes life harder once you say this operates with respect to anyone in the world.  It does not make life harder in a case where the class is within Australia.  It makes life very difficult if the class is located in Brazil, or in Portugal or in South Africa where the means of distribution notices becomes problematic.  Conveying to people that their legal rights are being affected by some far-off court in Australia becomes problematic.  Doing so in a language that they understand becomes problematic.

It cannot be supposed, we say, that the legislature intended to reach in to these other jurisdictions and affect the rights of persons who may have no hope whatever of receiving notice and then comprehending that their rights were being so affected.

STEWARD J:  Is that an independent argument in support of your case?  Namely, that we should imply that “persons” is limited to people within – I will use the word “jurisdiction” – as the Court will be unable to control its processes such as opting out in an efficacious way in relation to people located thousands of kilometres away.

MS HARRIS:  It engages, your Honour, with – first, it is not my burden to show that the statute operates intra-territorially.  It is my friend’s burden to show it operates extra-territorially.  But, it is an indication that I am right.  It confirms that the operation of the statute is intra-territorial and when we look at the second reading speech, that is included in the papers ‑ I will give your Honours a reference to it in due course – what the learned Attorney‑General said at the time was that there are two purposes for this legislation.

The first purpose is to enhance access to justice for members of the community.  Quite self-evidently, he was not talking about improving access to justice for members of a community in a different state.  He was talking about improving access to justice for members of the Australian community.  Secondly, and this is at pages 1763 to 1764 of the materials, the second thing he said was the other purpose is to improve the efficient administration of justice. 

Now, for the reasons I have proffered, if anything, requiring the Court to accommodate group members outside the country is not conducive to the efficient administration of justice in this country, because the court – remembering that the court is the guardian, in effect, of the interests of group members in this context, they do not have a voice here, other than through the representative party and the court is beholden to be astute to their best interests.

So, the Court would need to be satisfied, in respect of notices given under section 33X and 33Y, that adequate notice had been provided to that person, wherever they were in the world, in a language that they could understand, so that they could be taken to have accepted the adjudication of their rights once a judgment of the Federal Court was given.

Now, we say, if anything, that that proposition is antithetical to the effective administration of justice, but I do not need to have that proposition accepted in order for my argument to be accepted, because the critical factor here and what the Federal Court – if I can put my finger on the two critical errors made by the Federal Court they are these:  the first thing they did was invert the presumption, they made me prove that it operated intra‑territorially when the presumption operates the other way; the second thing that they did was to distort the operation of a presumption by focusing on, in effect, one small aspect of what Part IVA does, and your Honours will see it at paragraphs [43] to [44] of the Full Court’s judgment, which is at page 85.

GAGELER J:   Ms Harris, can I ask you, before you go to that, a couple of textual questions.  At the end of the day this is a question of construction and, as I understand the way that you present the argument orally, your focus is on the definition of “group member” in section 33A and what you are telling us is that the word “persons” there must be read down to mean in the case of an actual person’s residence.  Do you take the same approach to the definition of “representative party”?

MS HARRIS:   No, your Honour, because that is a case – and when we come to look at CSL – it is a little bit like CSL where within the statutory provision itself you have a territorial limitation, or the territorial limits of that concept are already sort of self‑defined.  In other words, inherent in the concept of a representative party is someone who has come within the jurisdiction, at least in the legal sense, to submit – to initiate process in the Federal Court and to submit themselves to the adjudication of the court, so no question of extraterritoriality actually arises with respect to the person who is a representative party.

GAGELER J:   So, the entire burden of your argument is on the word “persons” within the definition of “group member” in section 33A, textually?

MS HARRIS:   Yes, group members, in effect.  So, group members, as a concept and so that the persons who may be in that bucket.  To go back to my rather crude analogy before, your Honour, Part IVA contains two buckets of persons whose claims may be prosecuted.  The first bucket contains the representative party.  That is the one who comes within the jurisdiction and submits the process of the Court – the adjudication of the Court.  The second bucket contains the group members who are entirely passive in this process – who may have their ‑ ‑ ‑

GAGELER J:   Both buckets are drawn from the well of section 33C.

MS HARRIS:   They are.  But then there is a distinction made.

GAGELER J:   Yes, I see.

MS HARRIS:   So, there is a well that is the repository of the contents of both of the buckets, but then the buckets are separated.

GAGELER J:   Ms Harris, before I turn myself off, there are two further textually related questions I wanted to ask.  You made mention of the Acts Interpretation Act – I just want to ask you two questions about that.  You did not, I think, refer to section 2C(1) – which contains a definition of “persons”.  The definition includes a body politic or corporate as well as an individual.  Does that definition apply to the word “persons” in the definition of “group member” in section 33A, in your submission?

MS HARRIS:   I am going to turn the legislation up before I answer your Honour.  Do you mind if I come back to your Honour?

GAGELER J:   No, that is all right.

MS HARRIS:   The word “persons”, of course, does not appear in 21(1)(b).

GAGELER J:   No.  So, that is the next question. 

MS HARRIS:   Yes. 

GAGELER J:   What has 21(1)(b) got to do with it?  Where is the “thing” or “matter”?

MS HARRIS:   The courts have treated section 21(1)(b) as having similar work to do to the common law presumption while not codifying the common law.  So, it can embrace – so, when we come to look at CSL, for example, this Court proceeded on the basis that 21(1)(b) applied to persons within the general rubric of things and matters outside the territory.  I will point it out when we come to that case, if your Honour pleases.  Can I take your Honours to paragraph [43] of the Full Court’s reasons?  Your Honours, they start by giving a nod to Lord Justice James in Niboyet:

that the legislature of a country does not normally intend to deal with persons or matters over which, according to the comity of nations, jurisdiction properly belongs to some other sovereign or state.  But section 33C(1) –

Their Honours consistently focus only on 33C., they do not look to the operation of Part IVA.  The relief that we seek relates to Part IVA:

But s 33C(1) is directed to when a particular form of proceeding can be commenced in an Australian court exercising Ch III judicial power to quell a controversy . . . The manner of exercise of a jurisdiction conferred on an Australian court is not, obviously enough, a matter where it might be thought jurisdiction properly belongs to a foreign sovereign or state.

Now, pausing here, the subject matter jurisdiction of the Federal Court is not a matter for – it is not a matter where the jurisdiction properly belongs to some other state, but section 33C and Part IVA are not concerned with the conferral of subject matter jurisdiction on the Federal Court.  As your Honour Justice Gordon puts to me, that subject matter jurisdiction exists independently of Part IVA.  Nor is section 33C or Part IVA centrally concerned with how you initiate proceedings in such an Australian court.  It is not.

GORDON J:   The reason why they are focused on 33C is because, accepting, as you just did, properly that subject matter jurisdiction, is it found elsewhere in the other 150 Commonwealth legislation and in the Judiciary Act, then they are people within 33C.  They are people – persons – who have claims within the meaning, so that within the bucket – as you describe it, of the 33C bucket – but you then divide the bucket into half to get to a different result depending upon whether they are representative parties or whether they are group members.

MS HARRIS:   Indeed, your Honour.  The ‑ ‑ ‑

GORDON J:   Sorry.

MS HARRIS:   No.  I beg your pardon, your Honour.

GORDON J:   So the question is:  where is the divide to be found as a question of construction?  Within Part IVA, given the role Part IVA plays within the things that you obviously take for granted, and must?

MS HARRIS:  It, of course, exists within Part IVA, and it is in ‑ ‑ ‑

GORDON J:   No, no, but it is broader than Part IVA.  It is within the way in which the Federal Court Act works, providing a set of procedures and mechanism for jurisdiction which we find outside of this Act.

MS HARRIS:   And, your Honour, other than Part IVA – and the judge made rules in order 9 – can we leave those to one side?  We are talking about the Act – outside Part IVA, the jurisdiction of the Federal Court may only be exercised with respect to controversies brought to it in Australia.  In other words, the inception of the proceedings occurs in Australia.  That is why Part IVA is not about the inception of proceedings.  Part IVA does not tell you how to incept proceedings.  It says you, as a representative party, may incept proceedings on behalf of other people.  And the central concern of Part IVA, the central focus is on how the court may adjudicate those rights – the rights of those other people.

Whose claims may be adjudicated is a central first question and – with respect, your Honour – it is not answered by saying “a person with a claim.”  If the person did not have a claim, there is no question of them being a group member, because the court could not exercise jurisdiction over someone who did not have a claim with respect to which it has subject matter jurisdiction.  It goes without saying that every single person in the well is a person with a claim, but the question here – and it is not answered by the Full Court – is whose claim may be adjudicated without their consent?  Is it anyone in the world or is it persons within the territory?  And this is not a case where the legislation simply confers a benefit.  It purports to confer a burden.  It purports to affect the rights of those persons outside the territory.  It purports to preclude them from initiating proceedings in their home territory, should they wish to do so.

Now, it probably does so ineffectively, but that is a point in my favour because the whole purport of this legislation, the quid pro quo, is that if a respondent is to be subjected to the adjudication of claims by persons not before the court it must have finality and the reading that our learned friends in the Federal Court give to the legislation does not do so.

Now, they go on at paragraph [44] to give a nod to Barcelo and Meyer Heine and section 21(1)(b) of the Acts Interpretation Act, and then they say towards the end of the paragraph in the second‑last full sentence:

But, as noted above, the provision to be construed here –

“the provision to be construed here” ‑ it is not a provision, it is Part to be construed here:

relates to how persons can start a particular form of proceeding in an Australian court.  The presumption has no work to do in the search for meaning of a statutory provision of this character.

Now, in that, the court clearly erred.  They erred in their focus on section 33C, they erred in their characterisation of section 33C, and very specifically they erred in their characterisation of Part IVA.  Part IVA is not a part that simply relates to how persons can start a particular form of proceeding because group members never start a proceeding, they may never know it existed.

GAGELER J:   Ms Harris, as I understand your argument, you can accept what they say about section 33C(1), can you not?

MS HARRIS:   I can accept that – I cannot accept that that is what section 33C(1) does.  I can certainly accept that, to the extent it confers jurisdiction on the Federal Court, that is not a matter for a foreign – that is not, per section, a matter for a foreign sovereign.  It intrudes on the jurisdiction of other states and sovereigns at the point where that jurisdiction – the power – is exercised with respect to people outside the territory.  That is why you cannot read 33C in isolation, because when you get to section 33ZB that is the crunch, and at that point – and 33ZB only concerns group members, the judgment binds all of the group members.

GORDON J:   Ms Harris, in response to Justice Gageler’s question, then, you said that section 33C confers jurisdiction on the Federal Court.  It does not, does it?

MS HARRIS:   I said if it confers jurisdiction, because that is the language used by the Full Court at the end of paragraph [43] and our argument is the same whether it confers jurisdiction or power.  Now, it is an open question, your Honour, because the statutes pursuant to which the Federal Court obtains jurisdiction to deal with persons who invoke its jurisdiction do not allow it to adjudicate the claims of non‑persons – of non‑parties to the proceeding.  The only way in which the court obtains in personam jurisdiction over those persons is through Part IVA, but I do not need to chase that rabbit right down the hole because even if we treat Part IVA as simply a matter of procedure it does not matter, it gives powers to the Federal Court, and the question still arises:  with respect to whom does it give those powers?

Now, our learned friends say that two things about this:  firstly, that we should be looking at this to see whether, on a literal reading, the statute would be inconsistent with the comity of nations or international law; or where it improved on the subject matters over which some other sovereign has jurisdiction.

Now, that – they then embrace what the Full Court did below in taking that narrow focus, saying, all we are looking at here is claims that can be adjudicated by the Federal Court.  That is not what we are looking at here.  And they also invert the presumption in a similar way, to say, well, it is capable of applying to anyone in the world, so, you have got to show why it should not do so.

KIEFEL CJ:  Ms Harris, the presumption has regard to – the purpose and object of the presumption is an interference with the exercise of jurisdiction by a foreign power, by another sovereign state.  But your argument really does not touch on what that could be here.  We are not really talking about an interference by a sovereign state of jurisdiction over group members’ claims, are we?

MS HARRIS:  Your Honour, the interference with matters within the province of another sovereign or state is affecting the rights of persons within the territory over which that sovereign or state has jurisdiction.

KIEFEL CJ:  But they are not the same thing ‑ just saying that the person in another jurisdiction might be affected by an Australian court is not the same thing as saying that a sovereign state is exercising jurisdiction, and the powers exercised here regulating the procedures of an Australian court exercising jurisdiction are interfering with the exercise of the foreign state’s jurisdiction.

MS HARRIS:  Your Honour, that picks up the way in which our learned friends put the argument, and that is why I think we have tried to go back to basics in terms of the articulation of the presumption.  And so, can I give your Honour – I am conscious of time and getting through what I need to get to, but can I give your Honour some references to the articulation of the provision by this Court?  And so, in Morgan v White, Justice Isaacs said that there was a prima facie presumption that:

the persons, property, and events in respect of which Parliament has legislated are presumed to be limited to those in the territory over which it has jurisdiction –

Jurisdiction is territorial.  The jurisdiction over which our Parliament legislates is the Commonwealth of Australia.  Now, there are equally clear statements by Justice Barton in the same case at pages 4 to 5 ‑ the statement from Justice Isaacs was at page 13 of 15 Commonwealth Law Reports. 

That statement is picked up by Justice Taylor in Meyer Heine that I will go to in a moment.  It engages centrally with a number of dicta from Justice Windeyer.  The one in Myer Heine that I will come to and then in Reg v Foster which is at page 1159 of the bundle, at 103 CLR 256.  In that case, Justice Windeyer says at 306 that:

A statute in general terms is always construed as prima facie affecting things and persons within the territory of the country which enacts it, and as not affecting things elsewhere.

That is the sense in which we deploy the presumption.  The legislation is always construed as prima facie affecting things and persons within the territory and not affecting things and persons elsewhere.  And on our learned friends’ reading of the statute, it affects persons elsewhere.  And his Honour goes on to say in that same passage that at common law sovereignty is:

territorial; because territorial boundaries ordinarily mark the limits of the effective enforcement of municipal law.

It is geographic.  Justice Leeming in DRJ, I think at paragraph 100 and following, makes the same point, by reference to authorities of this Court.

EDELMAN J:   Why would there not, on that submission, be no distinction between persons who are representative parties and persons who are group members?  In other words, on that approach to the presumption, surely a person who is a non‑Australian resident or a permanent non‑Australian resident could not be a representative party either?

MS HARRIS:   But they come within the territory to initiate proceedings.  In a legal sense, you cannot initiate proceedings in the Federal Court without coming within the territory in the legal sense, your Honour.  You cannot.  You have to do so.

EDELMAN J:   So, your presumption against extraterritoriality, it does not actually matter whether the person has consented or not consented to the bringing of the proceedings.

MS HARRIS:   Your Honour, in terms of the presumption against extraterritoriality, it inquires only as to whether something is inside or outside, in crude terms.

EDELMAN J:   No.  But they cannot – well, then your argument would have to be that a representative party has rebutted the presumption.

MS HARRIS:   Yes.  Or, it is inherent in the concept of a representative party – your Honour frowns at me, but it must be the case that a representative party is necessarily someone who has come within the jurisdiction.  And so, when we are talking about those two buckets; we draw into the well, we have got a represented party bucket, that person must come into the territory to submit itself to the jurisdiction of the court.  So, there is no question – I would agree that the presumption has no work to do there.  You do not need to worry about the presumption there.  It is the other bucket, because the other bucket is full of people who had not come in, who have no submitted themselves to the jurisdiction of the court.  Some of them may be within the territory, some of them may be outside.

EDELMAN J:   So, it is a presumption against extraterritorial operation of legislation in the sense that the legislation would apply to permanent non‑residents who have not brought themselves within the jurisdiction of the court.  Would that be the most accurate way to express the presumption?

MS HARRIS:   The most accurate way to express the presumption is that it draws a distinction between persons within the territory and persons without.  And that ‑ ‑ ‑

EDELMAN J:   Well, an Australian on holiday overseas is outside the territory, but that is not what you are talking about.  You are talking about persons who are permanently resident outside the territory, as I understand it.

MS HARRIS:   I am talking about residency as a concept which is well understood by both this Court and a concept which is well understood and deployed in legislation, including in group proceedings legislation.  And, as your Honour will see, when your Honour reads the article by Professor Mulheron describing the way in which other group‑proceeding statutes work with respect to non-residents, it is the precise reasons – firstly, they use residency as a territorial discrimen.  Secondly, they make the non‑residents opt in, so as to ensure that their rights can be bindingly affected, as is intended in a statute of this kind.  And we do not see any of that here.  The provision is perfectly bald, and it is – as I have said, it was enacted in order to provide access to justice to members of the community.

I would submit to your Honour that that does not mean members of a community in Brazil – that means members of the community in Australia and to improve the efficiency of the administration of justice in this country.  Again, I do not see anything in that context that suggests that the legislature was concerned to provide a pathway for persons outside the territory not to have their claims determined because they do not bring their claims to court.

STEWARD J:   Ms Harris, you said before that residency has an accepted meaning or a meaning that is well‑known.  Can you just tell me what it is here?

MS HARRIS:   So ‑ ‑ ‑

STEWARD J:   Is it a permanent place of abode test or ‑ ‑ ‑

MS HARRIS:   It is more likely to be the place of abode and we would say to your Honours that the test is most likely to be applied at the initiation of proceedings.  That is the point at which section 33C is engaged with respect to group members.

STEWARD J:   So, the issue of domicile we ignore?

MS HARRIS:   So, domicile is a concept which is also being used in the cases.  Your Honour, the important thing is, firstly, that the presumption requires us to draw the line, and then the question is how you draw it.  We see residence as the most convenient territorial discrimen.  It is not the only one that has been used in the cases.  So, if your Honour reads, for example, the discussion in Barcelo by Justice Dixon – it is at pages 443 to 444 of the bundle – and Justice McTiernan, in the same case, at pages 463 to 465 – that kindred concept of domicile has been used.

But, as I said, Lord Justice James in Niboyet used “residence” in preference to “domicile” because domicile would have ruled the French consul and his wife out of the purview of the Marriage Act, but residence ruled them in – because they were within the territory.  “Residence” was a descriptor of persons within the territory.  I should say that Justice Dixon adopted the statements of Lord Justice James in Niboyet in Barcelo in that passage that I just referred to.

In those passages that I have just referred the Court to, your Honours will see a lot of terms used interchangeably.  “Foreigners” is a term that is used both in Barcelo and in Meyer Heine.  “Residents”, “domicile”, “subjects of another State” – the question is not what label you put on it.  The question is whether the presumption operates, and then you have to give effect to it.

If your Honours were to consider the operation of Dicey’s Rule 36 or Rule 43, which is explained by Chief Justice Allsop in Akers v Commissioner of Taxation 223 FCR 8, which is at pages 1564 to 1565 of the bundle, those criterion for the enforceability of foreign judgments engage with presence in the Territory at the inception of proceedings. It is all about presence in the Territory. That is the reflection in private international law of the way in which the presumption operates here. It rules in the people within the Territory and it rules out those outside because the court’s judgment cannot successfully be enforced against them in their home territory. That is the thesis.

Now, perhaps it is time I took your Honours to Meyer Heine, which is at number 21 at page 833, and this is a case, as I said, where members of the Court typically used the word “foreigners” to describe persons outside the territory.  This case concerned the statutory provision that your Honours see in the headnote, and it provided that:

Any person –

They were the words of general import:

who . . . enters into any contract –

Again, words of general import:

. . . or engages in any combination . . . 

(a)in restraint of or with intent to restrain trade or commerce –

Now, pausing there, the members of the Court proceeded on the basis that that was trade or commerce with a connection with Australia, between Australia and elsewhere.  Now, those words do not appear in the statute.  It was not even suggested that they operated more widely.  And then:

(b)to the destruction or injury of or with intent to destroy or injure by means of unfair competition any Australian industry . . . 

is guilty of an offence –

Now, pausing there, the singular subject matter or this statute is within the province of the Australian legislature, the Commonwealth legislature.  It is not the concern of some foreign sovereign.  The subject matter is quintessentially Australian.  It is directed towards the protection of Australian trade.

Now, at that point, our learned friends would draw the line and say, well, the presumption has no more work to do, because this statute is concerned with things within Australia.  The subject matter is Australian.  But the presumption did have work to do.  It required, as we will see, a construction of this provision such that it only applied to contracts entered into within the territory.  And that, I think – it demonstrates the falsity, if I might say so, of the proposition that has been advanced against us, that the subject matter of the statute must be something that belongs to someone else before the presumption can be engaged.  Clearly, that is not right.  It also demonstrates the falsity of the second proposition that is put against us, namely, that once a territorial nexus is established with Australia, the presumption has no work to do.  Clearly that is not right, because there is a clear territorial nexus with Australia.

Now, in this case, the plaintiff was a shipping company and it carried goods between Australia and other countries, including Japan and Hong Kong, and it was not a member of the exclusive club of other shippers and shipping companies known as the Australian and New Zealand/Eastern Shipping Conference.  The defendants were members of that conference and they were incorporated in the UK.  They had entered into contracts with the other members of the shipping conference, and, pursuant to those contracts, all of the members of the conference had agreed to make shipments to Australia through other members of the conference.  It was a closed shop.

Now, the contracts were made outside Australia. They were made in Japan and Hong Kong. The plaintiff was another shipping company that plied the same route. It will be remembered, and it sued the defendants for breach of section 4. Now, the defendants entered an appearance to the action, and so the jurisdiction of the court clearly engaged. But they demurred from the statement of claim, including the allegation that they were caught by section 4, they said that the section did not apply to the making of contracts outside Australia, at least by foreign companies. That proposition was accepted by four out of five members of the High Court.

Can I start with Justice Windeyer?  Because his judgment is certainly the pithiest and it engages very centrally with the submissions we put here.  It is at page 43 of the report and page 866 of the bundle.  And his Honour says:

The prima facie presumption of English law is that a statute is to be construed as limited in its operation to the territory or the nationals of the state which enacts it.  This is somewhat reinforced, I think, in the present case –

Et cetera, et cetera.  And then, at about point 2 of the page:

That, however, is not conclusive.  The broad question in the case remains whether the prima facie presumption, that the Act does not extend to penalize acts done outside Australia, by foreigners, has been displaced.  The question is one of considerable importance, and I think of some difficulty.  It may be that if the Act is to have a fully effective operation with respect to trade and commerce between Australia and other countries it must strike at contracts made abroad.  It can therefore be argued that the nature of the subject‑matter itself indicates the scope that Parliament meant the Act to have.  But this I doubt.  If it had been intended that it be so widely construed one would expect some clear and express indication of this in its words.

EDELMAN J:   In Justice Windeyer’s expression of the presumption, you would read the “or” conjunctively, rather than disjunctively, would you?  In its operation to the territory, you would read that as saying the territory “and” the nationals of the state – not “or” the nationals of the state.

MS HARRIS:   Its operation with respect to nationals – I am going to give your Honour a reference to an interesting discussion in Dicey, Morris & Collins on the Conflict of Laws, 15th edition because his Honour’s reference to nationals, there, I think, engages with what was formerly thought to be another means of obtaining personal jurisdiction – that is, through nationality.

EDELMAN J:   Yes.

MS HARRIS:   That has since been discredited.

EDELMAN J:   No, I understand that.  The point that I was making is that whether you call it “nationals” or “residents”, it is a disjunctive point in the way it is expressed, but your submission, as I understand it, would read it conjunctively – and the same with the way that Justice Windeyer later expresses the application of the presumption where he says it applies:

to penalize acts done outside Australia, by foreigners –

You would read that as to penalise acts done outside Australia or by foreigners.

MS HARRIS:   No, I would not read it as saying “or by foreigners” because if foreigners commit the act in Australia, then they are clearly caught.  So, when you – the effect of the way in which the presumption would apply here, was to give the statute intra‑territorial operation by treating any contract made outside the territory as being without it.  So, at that point, it does not matter whether it is by a foreigner or ‑ ‑ ‑

EDELMAN J:   It is not binary, though.  There are degrees of extra‑territoriality and the presumption has degrees of force according to how extra‑territorial its operation will be.  This case is an excellent example of that – that statutes could operate entirely intra‑territorially or they could operate partly extra‑territorially and then the question of the presumption – the force of it – will apply, depending on the extent to which it is going to operate extra‑territorially.

MS HARRIS:   I am not sure that I would accept all of what your Honour says – certainly with respect to degrees.  Unless, by that, your Honour means that you might not need to interpret every word in the statute as being within Australia in order to give it intra‑territorial effect.  That is the point, really – that the role of the presumption is to give the statute intra‑territorial effect – in that geographic sense – unless Parliament makes clear that it intends it to have an extra‑territorial operation.  So, the Competition and Consumer Act is a good example of where Parliament has expressed itself in that way. It does so by reference to “residence”. So, section 4 of the Competition and Consumer Act says that the Act extends to things done outside Australia by residents of Australia.  So, it engages, again, with those territorial concepts but it expresses an intention that it will operate outside the geographic territory of Australia.

Now, here the legislation did not do so.  It did not make that intention clear, and his Honour said there is no indication in the statute that it should apply outside Australia, and so that is the end of it.  Then his Honour goes on and says that conclusion is reinforced by section 9 – we will come to section 9 in a moment – that seems to indicate fairly plainly that it is to operate intra‑territorially.  If that be so, then Parliament needs to make an amendment, and we say the same thing here.  The real intention is to give access – is to have – is to facilitate the bringing of claims by persons in another jurisdiction and it behoves Parliament to make that intention clear.

Now, working backwards, Justice Menzies was the only member of the Court who found a contrary intention expressed in the legislation and the critical passage is from his Honour’s judgment at pages 38 to 39 of the report, which is at page 861 and following of the bundle.  He accepts the presumption at about point 5 on page 38 of the report, and then at page 39 discerns a contrary intention and your Honours will see that at about point 4 on the page, driven by the definition of “commercial trust” but also by the import of the legislation, but his Honour was in the minority on that score.

If one was in the territory of seeking a clear contrary intent, we have dealt with that in our written submissions.  There are four main points that the generality of the use of the term “persons” is deliberate and is part of the scheme.  Secondly, to read in residents would create, in short, chaos.  Thirdly, residents, if read in, would contradict the fundamental Parliamentary choice respecting the autonomy of all group members.  Fourthly, it would defeat the core purposes of the Part and render it deficient over the old representative action in equity.

The foreign group members would be left to bring their claims under an Australian statute, in an Australian court, by other procedures, multiplying actions, costs, and demands on court time.  Satellite litigation over the composition of the group would be encouraged, against no clear standard in the text, and the damage to the Court’s resources in facing a multiplicity of actions would be transparent.

Your Honours, our final submission I have made – which is that one cannot find any supporting international authority or materials for the BHP argument.  In no jurisdiction which uses the type of general approach

Australia uses, has the presumption ever been argued or applied.  NAB v Morrison, I have explained is a different case.  The final case I mentioned earlier, Phillips Petroleum Co v Shutts – which is in volume 5, at tab 39 – is an excellent discussion by the US Supreme Court of how the relationship between the group and the court is fundamentally different to the relationship between the defendant and the court.  Unless your Honours have questions, they are our submissions.

KIEFEL CJ:   Thank you, Mr Gleeson.  Your reply, Ms Harris.

MS HARRIS:   Thank you, your Honour.  Your Honours, in construing this legislation, we must look at it through the eyes of 1991 lawyers.  The meaning of the legislation must be the same now as it was when it was passed.  We cannot rely on the way in which it has been deployed – including the mechanisms that have been developed in a bespoke way by the Federal Court – to determine the meaning of the legislation.  That is a matter of construction.  In that task of construction, the respondents have given this Court no assistance or guidance in how to reconcile the statements that have fallen from members of this Court in consistent terms for over 100 years with respect to a presumption of construction that will apply where the general words of a statute are capable of giving an effect extra‑territorially.

So, in the quiet of your Honours’ chambers, your Honours will have to determine how to reconcile our learned friends’ arguments with statements like those of Justice Windeyer in Foster – at 103 CLR 306 – that a statute, in general terms, is always construed as, prima facie, affecting things and persons within the territory of the country. Your Honours will have to grapple with statements to the same effect in Jumbunna Coal, by Justice O’Connor, in Morgan v White, by Justice Isaacs and Justice Barton.  Your Honours will have to grapple with Meyer Heine, where that statement was picked up in each of the judgments – statements of the principle were picked up in each of the judgments – not doubted – and there is no application here for leave to depart from anything that was determined in those cases.

Your Honours will have to grapple with what with what Justices Dixon and McTiernan discussed in Barcelo – the former at page 424 and following, and the latter at 465 – where they each stated the presumption in materially the same terms.  A legislature is presumed to be dealing only with persons within its jurisdiction and your Honours will have to grapple with the discussion in particular by those two Justices in Barcelo where the focus is on the application of the legislation to persons.  And Justice Dixon’s discussion at 424 picks up and endorses the application of the presumption of two persons.

GAGELER J:   Ms Harris, are you going to grapple with Justice Leeming’s analysis in DRJ?

MS HARRIS:   That brings me, your Honour, to the next point.  We actually see – I do not know how to put the lectern down, your Honour, so I hope your Honour can see me.  DRJ actually helps us because Justice Leeming recognises that presumption.  The thing that is seized on by our learned friends actually helps us too, because Justice Leeming makes the point, and it must be right, that you do not read every single word in a statute as being intra-territorial where that is not necessary to give the statute intra-territorial operation.  So, it was sufficient in DRJ to read the statute as applying to acts of violence committed within New South Wales.  It was acts of violence which was, in the words of Insight Vacations, the hinge or the central conception of the legislation, so it was right to read that term intra-territorially.  We embrace that, because the central conception of this legislation is group members.

To pick up the point that fell from your Honour Justice Gordon, the central point, the central focus of Part IVA is not the courses of action which are established under the various 150 or so statutes, with respect to which the Federal Court has subject matter jurisdiction.  That is not the central conception or focus of Part IVA.  The central conception or focus of Part IVA is bringing forward adjudication, claims of persons not before the Court.

How is that to occur?  What is the consequence?  The consequence is set out in section 33ZB.  So, to pick up something that fell from your Honour the Chief Justice, this is a statute which does affect rights of persons outside the territory.  It does purport, on its terms, to make a judgment of the Federal Court binding.  If it were to be binding, anywhere in the world, then that would preclude the person – the non‑resident – from bringing an action in a court in their home territory.  There is no other way you could erect a statutory estoppel other than by preventing an action in that court of the territory of the non‑resident.  But, concededly, it does not do so.

The respondent’s approach to this argument is the same as it was at first instance and below in the Full Court of the Federal Court, and that is to invert the presumption; to say Part IVA can be read sensibly as applying to non‑residents.  That is not the point.  Part IVA is like any other piece of Commonwealth legislation.  This Court will construe it, consistently, with the canons of construction that have been accepted in this Court as applying to statutory words of this kind.  Our learned friends say, for example, section 33C, obviously, applies to everyone in the world.  Right there, we have an inversion of the presumption because the presumption presumes that when section 33C talks about persons, it is talking about persons within the territory.

So, there is no violence to section 33C at all in BHP’s construction because the representative party is in the territory.  They must come into the territory to issue proceedings in the Federal Court of Australia.  So, even if they come from outside, they must come into the territory to do so.  The balance of the persons – the group members – to them, the presumption applies.  When we read – and we are grateful to our learned friends for focusing on other sections of Part IVA – your Honours will not have found a single word in any of those provisions that is suggestive or redolent of extra‑territorial operation – not a single word.

The submission that somehow BHP’s approach will destroy something is a submission made through the lens of 25 years of experience where this question has not been raised, and it has simply been assumed that if you want to make a foreign resident part of your group, you could do so.  That has no bearing whatsoever on the proper construction of this legislation.  That the submission that BHP’s submission creates uncertainty implies that we have two equally competing constructions here; that is not the way that presumptions work.

The presumption applies unless Parliament gives an indication clearly by express terms, or by necessary implication, that it intends to reach into another jurisdiction and affect the rights of persons outside Australia.  We say again that it is important in this regard to distinguish between the presumption and how it might be given effect in this context.  The presumption is that Parliament intends to affect the rights of persons inside the territory, and not to affect the rights of persons outside the territory.  In its relevant operation, that is the presumption.

STEWARD J:   Ms Harris, do I take it that your argument is that the presumption is not just another constructional tool but something which is automatically engaged to this generalised language unless it is turned off by contrary statutory intention?

MS HARRIS:   That is the way presumptions work, your Honour, and that is the way the presumption has been given effect by decision after decision after decision of this Court, in respect of none of which is leave sought to depart.  In many contexts, the Court will not need to have regard to the presumption because there will not be a question about extraterritorial operation, but there is one here.  There is a question here, and in resolving that we are, for want of a better word, stuck with a body of authority that tells us how that tension is to be resolved.  It is presumed that the legislation will operate on persons within the territory.

The respondents, in opening their submissions this morning, tried to sidestep the presumption altogether and the argument was, first, anyone can sue for a breach of section 12DA of the ASIC Act – anyone in the world can sue. The second step is the Federal Court has jurisdiction to determine claims for breach of section 12DA, pursuant to section 1337B of the Corporations Act.  Then the slide, all Part IVA does is provide an additional set of processes and procedures by which the jurisdiction may be exercised, and so the presumption has no room to operate.

That breaks down in a number of steps, that argument, and it also involves a non sequitur. Yes, the Federal Court has jurisdiction and power under section 1337B to adjudicate claims for breach of section 12DA which are submitted to it and the provision does not enable it to take it upon itself to determine claims of that kind belonging to people who choose not to invoke its jurisdiction. Those provisions do not facilitate the adjudication of non‑party claims. It is Part IVA that bridges that gap, and it does so with respect to persons who have not invoked its jurisdiction. Those people are group members.

I am conscious of what your Honour Justice Gordon has said about the provisions being procedural.  They are in a sense, but they do have a substantive effect on rights.  Once someone’s claim is submitted by a representative party to the court for adjudication, then their rights will be determined and thereby affected.  They will lose a course of action and they will lose on the terms of section 33ZB.  They will lose the ability to prosecute that course of action in any court – an Australian court or an overseas court.  They lose something.

The way the respondents pitch it is, it is all upside.  But it is not all upside for the group members, because they actually have their rights affected, and that is, as I said, part of the answer to what fell from your Honour the Chief Justice.  So once we conceive with Part IVA in that way, which we must, then we circle back to this central question not answered by the argument proffered by the respondents; namely, whose claims may be so adjudicated?  Which non‑parties?  Which persons may be non‑parties whose claims are adjudicated without them having brought them forward and invoked the jurisdiction of the court themselves?

Circling back to this Insight Vacations point that your Honour Justice Gordon raised, and in answer also to your Honour Justice Gageler, that is the point of DRJ, that is the hinge here.  The hinge here is group members.  Part IVA is all about the adjudication of group member claims.  Your Honour Justice Gordon is right; there are other provisions that deal with other aspects of what will be involved in these proceedings.  Other statutes dealing with the norms of behaviour which might have been contravened.  Other parts of the Federal Court Act dealing with the

initiation of proceedings by the mechanistic processes by which pleadings must be filed on time by the representative party.  Part IVA does not concern itself with all of that.  It concerns itself with group members.

When your Honours are seeking to reconcile our learned friends’ submissions, your Honours will also have difficulty in reconciling the submission – again made in very plain terms today – that the presumption only arises when you cannot find an expression of connection to Australia in the statute.  With respect, that must be wrong.  Meyer Heine tells you it must be wrong.  In that case, the statute was clearly connected with Australia.  It only concerned Australian subject matter; the protection of Australian industry.  But that was not the end of the argument, and contrary to what my learned friend says – and obviously your Honours will have to read the decision for yourselves – the presumption had work to do.

EDELMAN J:   It may depend upon – again, back to the Insight Vacations of Justice Leeming’s point, but what the gist or the central focus or the central point of the legislation is.  You say that the only relevant legislation here is the Federal Court Act and the relevant provisions are where the subject matter is persons, and one does not need to talk about in terms of personal jurisdiction or the personal dimension of jurisdiction if the subject matter itself is a subject matter over persons.

MS HARRIS:   Well, I guess your Honour can conceive of it that way, but ultimately it is all subject matter in the sense that we are dealing with either persons as subject matter, acts as subject matter – as in Insight Vacations, the question was where the acts were done and it did not matter that the proper law of the contract was New South Wales.  So that is the work done, I guess, by this central conception concept.  But ultimately the job that the presumption does is, subject to any contrary expression of intent by a Parliament, it ensures that the legislation will operate within the territory and in the ordinary case it will suffice to achieve that end to identify the central conception and to read that central conception as being a person, a matter, a thing, in and of this territory.  That is the role of the presumption in this case in the context of Part IVA.

To circle back to where I started my reply, it would not surprise any lawyer, I would venture, in 1991 for someone in the position of BHP to say this legislation applies to persons within Australia.  I do not think it would surprise anyone.  I doubt it would surprise any of the members of the High Court who have articulated this presumption so consistently.  It is surprising only because we stand here as class action lawyers 25 to 30 years down the track and are hearing the argument for the first time.  That has no bearing on the correct construction of the legislation.  We must look at it through 1991 eyes.  If your Honours please.

KIEFEL CJ:   Yes, thank you.  The Court reserves its decision in this matter and adjourns to 10.00 am tomorrow.

AT 4.16 PM THE MATTER WAS ADJOURNED