KIEFEL CJ, GAGELER, GORDON, EDELMAN AND STEWARD JJ
BHP GROUP LIMITED APPELLANT
AND
VINCE IMPIOMBATO & ANOR RESPONDENTS
BHP Group Limited v Impiombato
[2022] HCA 33
Date of Hearing: 9 August 2022 Date of Judgment: 12 October 2022
M12/2022
ORDER
Appeal dismissed with costs.
On appeal from the Federal Court of Australia
Representation
W A Harris QC with J E Moir for the appellant (instructed by Herbert Smith Freehills)
J T Gleeson SC with A D Pound SC and E Levine for the respondents (instructed by Phi Finney McDonald and Maurice Blackburn Lawyers)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
BHP Group Ltd v Impiombato
Statutes – Interpretation – Territorial operation – Presumption against extraterritoriality – Acts Interpretation Act 1901 (Cth), s 21(1)(b) – Where Pt IVA of the Federal Court of Australia Act 1976 (Cth) permitted a person to commence a representative proceeding in the Federal Court of Australia on behalf of other persons ("group members") where certain statutory criteria were met – Where Pt IVA did not contain any express geographic or territorial restriction on the identity of persons who could be group members – Whether Pt IVA allowed claims to be brought on behalf of group members not resident in Australia.
Words and phrases – "central focus", "claims", "class action", "federal jurisdiction", "hinge", "in and of the Commonwealth", "matter", "object of legislative concern", "personal jurisdiction", "presumption", "presumption against extraterritoriality", "representative proceedings", "statutory construction", "statutory interpretation", "statutory presumption", "subject matter jurisdiction", "territorial connection", "territorial jurisdiction", "territorial restriction".
KIEFEL CJ AND GAGELER J. The question in this appeal is whether Pt IVA of the Federal Court of Australia Act 1976 (Cth) ("the Act") permits representative proceedings to be brought in the Federal Court of Australia on behalf of group members who are not resident in Australia. The question is entirely one of statutory construction.
The question has arisen at an interlocutory stage of a representative proceeding brought by the respondents against the appellant, BHP Group Ltd ("BHP"). The proceeding is brought on behalf of group members identified as persons who purchased shares in BHP or in BHP Group Plc during a defined period and who are alleged to have suffered loss resulting from conduct of BHP in contravention of ss 674(2) and 1041H(1) of the Corporations Act 2001 (Cth) and s 12DA(1) of the Australian Securities and Investments Commission Act 2001 (Cth). The proceeding is within the original jurisdiction conferred on the Federal Court by s 1337B(1) of the Corporations Act and by s 39B(1A)(c) of the Judiciary Act 1903 (Cth).
The primary judge (Moshinsky J)[1] and, on appeal by leave, the Full Court of the Federal Court (Middleton, McKerracher and Lee JJ)[2] rejected an argument by BHP that Pt IVA of the Act…
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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AGLC
BHP Group Limited v Impiombato [2022] HCA 33
Case
[2022] HCA 33
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by BHP Group Ltd concerning the interpretation of Part IVA of the *Federal Court of Australia Act 1976* (Cth), which governs representative proceedings (class actions). The dispute arose from a class action brought against BHP on behalf of individuals who acquired shares in BHP or its related entity, BHP Billiton Plc, and allegedly suffered loss due to non-disclosure of risks associated with the Fundão Dam in Brazil, which subsequently failed. The core issue was whether Part IVA permitted claims to be brought on behalf of group members who were not resident in Australia.
The legal issue before the Court was whether Part IVA of the *Federal Court of Australia Act 1976* (Cth) allowed for representative proceedings to include group members who were not residents of Australia. This required the Court to determine the territorial scope of Part IVA, particularly in light of the common law and statutory presumptions against extraterritorial operation of legislation.
The Court reasoned that the proper construction of Part IVA, having regard to its text, context, and purpose, indicated that it encompassed all persons with the relevant "claims," irrespective of their residency. The Court found that Part IVA's territorial connection was directly to the jurisdiction of the Federal Court and that no further territorial limits needed to be inferred. The Court applied principles of statutory interpretation, noting that the presumption against extraterritoriality may have limited application depending on the specific statute and its subject matter.
The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
The starting point is the proper construction of Pt IVA[53]. That is because, depending on the particular statute and its subject matter, the common law and statutory presumptions against extraterritoriality may have little or no role to play in the process of construction. Having regard to its text, context and purpose, Pt IVA encompasses all persons, irrespective of whether they are Australian residents, who have "claims" of the kind described in s 33C(1) of the Federal Court of Australia Act, so long as the claims include one claim under the various laws made by the Federal Parliament which vest jurisdiction in the Federal Court, including its accrued jurisdiction[54]. The territorial connection of Pt IVA is direct and specific; it concerns the jurisdiction of the Federal Court. It is not necessary or appropriate to infer any further territorial limit into Pt IVA. [53]See, eg, Barcelo v Electrolytic Zinc Co of Australasia Ltd (1932) 48 CLR 391 at 422-423, see also 406-407; Wanganui-Rangitikei Electric Power Board v Australian Mutual Provident Society (1934) 50 CLR 581 at 601, 606-607, 611-612; Mynott v Barnard (1939) 62 CLR 68 at 75-76; Meyer Heine Pty Ltd v China Navigation Co Ltd (1966) 115 CLR 10 at 22-24; Old UGC Inc v Industrial Relations Commission (NSW) (2006) 225 CLR 274 at 283 [23]; Insight Vacations Pty Ltd v Young (2011) 243 CLR 149 at 161-162 [32]-[36].[54]Federal Court of Australia Act, s 19. See also Fencott v Muller (1983) 152 CLR 570 at 603-610; Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at 571-572 [7]-[10], 585-586 [51]-[55]. Background BHP is a company registered in Australia and listed on the Australian Securities Exchange ("ASX"). At the relevant time, BHP had a dual listed company structure with a separate company, then known as BHP Billiton Plc ("BHP Plc"). BHP Plc was registered in the United Kingdom and listed on the London Stock Exchange ("LSE"), with a secondary listing on the Johannesburg Stock Exchange ("JSE"). Under the dual listed company structure, BHP and BHP Plc operated as if they were a single unified economic entity with a unified board and management team. BHP[55] held a 50 per cent interest in a Brazilian company that owned and operated the Germano Complex in Brazil, which included the Fundão Dam. On 6 November 2015 (AEST), the Fundão Dam failed, releasing a significant volume of tailings and resulting in loss of life and other consequences. On 6 and 9 November 2015, BHP made announcements on the ASX relating to the incident. Following these announcements, the price of BHP shares on the ASX – and BHP Plc shares on the LSE and JSE – declined significantly.[55]Through a wholly-owned subsidiary, BHP Billiton Brasil Ltda. The respondents are the representative applicants in a class action commenced against BHP in the Federal Court of Australia under Pt IVA of the Federal Court of Australia Act. The group members are relevantly defined to include persons who, during a specified period, contracted to acquire an interest in fully paid up ordinary shares in one or more of BHP on the ASX, BHP Plc on the LSE, and BHP Plc on the JSE, and are alleged to have suffered loss by reason of BHP's conduct. The representative applicants allege that, between August 2012 and November 2015, BHP was aware of certain information and risks relating to the Fundão Dam and that, contrary to the continuous disclosure obligations under the ASX Listing Rules and s 674(2) of the Corporations Act 2001 (Cth), BHP did not inform the ASX of those matters prior to 9 November 2015. The representative applicants also allege that BHP engaged in misleading or deceptive conduct contrary to s 12DA(1) of the Australian Securities and Investments Commission Act 2001 (Cth) and s 1041H(1) of the Corporations Act. Before this Court, there was no dispute that the group members' claims could be brought in the Federal Court and, as will be seen, were claims over which the Federal Court had subject matter jurisdiction.Statutory framework
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL CJ
GAGELER J
GORDON, EDELMAN AND STEWARD JJ
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Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ,
GAGELER J,
GORDON, EDELMAN AND STEWARD JJ