Clarke v JB Hi-Fi Group Pty Ltd - [2025] VSC 497

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

GROUP PROCEEDINGS LIST

S ECI 2023 05830

JEREMEY CLARKE	Plaintiff
v
JB HI-FI GROUP PTY LTD (ACN 093 114 286)	Defendant

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JUDGE:	Delany J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 July 2025
DATE OF RULING:	15 August 2025
CASE MAY BE CITED AS:	Clarke v JB Hi-Fi Group Pty Ltd
MEDIUM NEUTRAL CITATION:	[2025] VSC 497

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PRACTICE AND PROCEDURE – Application for trial of preliminary question – Group proceeding – Questions not likely to be dispositive – Basis on which questions to be answered uncertain – Proceeding raises novel questions – Consideration of the alternative of a limited initial trial – Application refused – Murphy v State of Victoria (2014) 45 VR 119; [2014] VSCA 238, applied – Doyle’s Farm Produce Pty Ltd v Murray Darling Basin Authority (No 2) 106 NSWLR 41; [2021] NSWCA 246, Tepko Pty Ltd v Water Board (2001) 206 CLR 1; [2001] HCA 19, Andrews v Australia and New Zealand Banking Group Ltd (2011) 281 ALR 113; [2011] FCA 388, Abdulrahim v Adult Parole Board of Victoria [2023] VSC 101, referred to – Williams v Toyota Motor Corporation Australia Limited (2024) 419 ALR 373; [2024] HCA 38, discussed – Competition and Consumer Act 2010 (Cth), Sch 2 ss 54, 259 – Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 47.04 – Civil Procedure Act 2010 (Vic), ss 7, 8.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Rachel Doyle SC with Rachel Francois and James Page	Maurice Blackburn
For the Defendant	Rob Craig KC with Andrew McRobert	HSFK

TABLE OF CONTENTS

A. The application.............................................................................................................................. 1

B. The principles................................................................................................................................ 6

C. The pleadings............................................................................................................................... 10

D. The competing cases.................................................................................................................. 15

E. The legislation in issue............................................................................................................... 18

F. The JB Hi-Fi submissions........................................................................................................... 21

G. The plaintiff’s submissions...................................................................................................... 25

H. Consideration.............................................................................................................................. 31

HIS HONOUR:

A. The application

These reasons concern an application by the defendant (‘JB Hi-Fi’) for the hearing and determination of four separate questions prior to the trial of the proceeding.

The proceeding is a group proceeding seeking compensation on behalf of group members who purchased ‘Extended Warranties’ from JB Hi-Fi. The proceeding alleges that JB Hi-Fi engaged in misleading or deceptive conduct or unconscionable conduct and/or that group members purchased the warranties on the basis of a mistake as to value.

The Extended Warranties relate to 12 broad categories of goods ranging from refrigerators and televisions to gaming consoles and fit/smart watches made by a wide variety of manufacturers.

The claim period extends over 12 years, between 1 January 2011 – 8 December 2023. The ‘Principal Claim Period’ concerns persons who purchased Extended Warranties between 9 December 2017 and 8 December 2023 and the ‘Mistake Claim Period’ concerns persons who purchased Extended Warranties, in the period between 1 January 2011 and 8 December 2017. The proceeding is an open class proceeding that is estimated to encompass 8.5 million group members.

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: [2025] VSC 497
Decision Date: 15 August 2025

CaseChat Overview and Summary

Clarke v JB Hi-Fi Group Pty Ltd [2025] VSC 497 concerns an application by JB Hi-Fi for the hearing and determination of four questions prior to the trial of a group proceeding seeking compensation on behalf of group members who purchased ‘Extended Warranties’ from JB Hi-Fi. The proceeding alleges that JB Hi-Fi engaged in misleading or deceptive conduct or unconscionable conduct and/or that group members purchased the warranties on the basis of a mistake as to value. The proceeding is an open class proceeding that is estimated to encompass 8.5 million group members. The claim period extends over 12 years, between 1 January 2011 – 8 December 2023. The ‘Principal Claim Period’ concerns persons who purchased Extended Warranties between 9 December 2017 and 8 December 2023 and the ‘Mistake Claim Period’ concerns persons who purchased Extended Warranties, in the period between 1 January 2011 and 8 December 2017. The four questions posed concern the construction of s 54 of the Australian Consumer Law, whether there is a temporal period that arises with respect to a category of goods at the time of supply, and whether the period is ascertainable at the time of supply. Delany J held that this was not an appropriate case to order the trial of separate questions. The questions were not likely to be dispositive of the proceeding, the lack of clarity regarding the materials and evidence required to determine the proposed questions meant that it was highly undesirable to embark upon a trial of separate questions without having first identified the agreed or assumed facts or the evidence by reference to which the questions are to be answered, the questions were not questions of statutory construction that were framed solely by reference to the language of the statute, and the questions did not satisfactorily expose the issues of substance raised on the pleadings. The uncertainty about the basis upon which the proposed trial of separate questions was to proceed gave rise to a separate difficulty. If the Court were to embark upon a trial of the proposed questions only to determine at the end of the hearing that some of the questions were incapable of being answered without further evidence, the time and resources of the parties and the Court would have been entirely wasted. The Court proposed to fix the proceeding for trial on 3 August 2026 and ordered the parties to confer and seek to reach agreement in relation to the scope and content of the initial trial, based on the plaintiff’s initial trial proposal. The costs of the summons were reserved.

Orders