BHP Group Limited v Impiombato & Anor - [2022] HCATrans 13

[2022] HCATrans 013

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M42 of 2021

B e t w e e n -
BHP GROUP LIMITED
Applicant
and
VINCE IMPIOMBATO
First Respondent
KLEMWEB NOMINEES PTY LTD (AS TRUSTEE FOR THE KLEMWEB SUPERANNUATION FUND)
Second Respondent
Application for special leave to appeal

KIEFEL CJ
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE

ON FRIDAY, 18 FEBRUARY 2022, AT 11.09 AM

KIEFEL CJ: I will announce the appearances of the parties.

MS W.A. HARRIS, QC appears with MR K.A. LOXLEY and MS J.E. D’SOUZA for the applicant. (instructed by Herbert Smith Freehills)

MR J.T. GLEESON, SC appears with MS E. LEVINE for the respondents. (instructed by Maurice Blackburn Lawyers).

KIEFEL CJ: Yes, Ms Harris.

MS HARRIS: Thank you, your Honours. If the Court pleases. Your Honours, every Commonwealth statute falls to be construed against constructional norms which are embedded in statute and well‑entrenched in the common law. These statutory and common law presumptions against extraterritorial application of legislation are just one example of these constructional norms, and as this Court has repeatedly made clear, and section 2 of the Acts Interpretation Act tells us in terms, the presumption applies unless a contrary intention appears.

Now, your Honours, it follows that it was not for BHP to establish that in legislating Part IVA of the Federal Court of Australia Act, Parliament signalled an intention to exclude persons and things outside Australia from its operation. By force of those well‑established constructional norms which each formed part of the statutory and common law backdrop to the passage of Part IVA, it must be presumed that Parliament was intending to legislate only with respect to persons and things within the Commonwealth, and not to legislate with respect to persons and things outside the Commonwealth, unless it made that contrary intention clear.

And herein lies the error in the Full Court’s reasoning which, with respect, likewise infects the contentions advanced by our learned friends. The Court proceeded on the erroneous footing that the constructional task was to discern a legislative intention that the general language of Part IVA did not apply to persons and things outside the jurisdiction, a failing which that general language must be taken to apply extraterritorially, and that error on the part of the Full Court emerges clearly at paragraphs 42 to 44 of the judgment which is at application book 94, and in these paragraphs the Court discusses the gateway provision to the Part ‑ section 33C, and section 33C, for the Court’s reference, appears at application book 142.

Now, true it is, as the Court observed at paragraph 43, that provision, section 33C, is directed to when a particular form of proceeding may be initiated in the Federal Court, and the manner of the Court’s exercised jurisdiction is, as the Court points out, not a matter within the province of a foreign sovereign, but so to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] HCATrans 13
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal concerning the interpretation of section 1305 of the *Corporations Act 2001* (Cth) in *BHP Group Limited v Impiombato & Anor*. The dispute arose from a claim brought by the respondents, Mr Impiombato and another individual, against BHP Group Limited, alleging breaches of directors' duties. Specifically, the respondents sought to recover damages for losses allegedly suffered by BHP due to these breaches.

The central legal issue before the High Court was whether section 1305 of the *Corporations Act*, which deals with the liability of a company for contraventions of the Act, could be invoked by a shareholder to recover damages on behalf of the company, where the company itself had not taken action. This involved considering the nature of derivative actions and the statutory framework governing corporate liability and remedies.

The High Court determined that section 1305 of the *Corporations Act* does not create a cause of action for shareholders to sue on behalf of a company for contraventions of the Act. Their Honours reasoned that the section establishes the liability of a company for its contraventions but does not confer a right on shareholders to step into the company's shoes to pursue such claims. The Court affirmed that the established principles of derivative actions, which require specific conditions to be met, govern such proceedings, and section 1305 does not alter these principles or create a new avenue for shareholder litigation.

The appeal was allowed, and the orders of the lower courts were set aside.

Orders