Dimitrov v The Supreme Court of Victoria & Ors

[2017] HCATrans 242

[2017] HCATrans 242

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S204 of 2017

B e t w e e n -

PETER MICHAEL DIMITROV

Plaintiff

and

THE SUPREME COURT OF VICTORIA

First Defendant

JUSTICE CROFT OF THE SUPREME COURT OF VICTORIA

Second Defendant

BENDIGO AND ADELAIDE BANK LIMITED ACN 068 049 178

Third Defendant

ABL NOMINEES PTY LIMITED ACN 105 756 521

Fourth Defendant

GREAT SOUTHERN FINANCE PTY LIMITED (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) ABN 47 009 235 143

Fifth Defendant

PETER CLARKE, AS TRUSTEE OF THE CLARKE FAMILY TRUST

Sixth Defendant

SAMANTHA BARBARA MURRAY

Seventh Defendant

RAYMOND CARL DRUMMOND

Eighth Defendant

ABL CUSTODIAN SERVICES PTY LIMITED ACN 097 889 720

Ninth Defendant

PIRIE STREET HOLDINGS LIMITED ACN 061 461 559

Tenth Defendant

JAVELIN ASSET MANAGEMENT PTY LIMITED ACN 136 367 194

Eleventh Defendant

GREAT SOUTHERN MANAGERS AUSTRALIA LIMITED (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) ACN 083 825 405

Twelfth Defendant

JOHN CARLTON YOUNG

Thirteenth Defendant

CAMERON ARTHUR RHODES

Fourteenth Defendant

PHILLIP CHARLES BUTLIN

Fifteenth Defendant

JEFFREY ARTHUR SYDNEY MEWS

Sixteenth Defendant

PETER JOHN PATRIKEOS

Seventeenth Defendant

Directions hearing

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO SYDNEY

ON TUESDAY, 21 NOVEMBER 2017, AT 10.15 AM

Copyright in the High Court of Australia

____________________

MR R.E. DUBLER, SC:   May it please the Court, I appear with MR Q.A. RARES, for the plaintiff.  (instructed by Sasha Ivantsoff, Solicitor)

MR A.C. ARCHIBALD, QC:   If it please your Honour, I appear for the third, fourth, ninth and tenth defendants, with my learned friend, MS F.I. GORDON, the Bendigo Bank parties.  (instructed by Allens Lawyers)

MR G.K.J. RICH, SC:   May it please your Honour, I appear with my learned friend, MR B.K. LIM, for the thirteenth to fifteenth defendants.  (instructed by Arnold Bloch Leibler)

MR T.W. MARSKELL:   If it please your Honour, I appear for the seventeenth defendant.  (instructed by Moray & Agnew)

HIS HONOUR:   Yes, thank you.

MR DUBLER:   Yes.  If I could perhaps commence, your Honour, by outlining the affidavits we move on, or rely upon.

HIS HONOUR:   Well, it may be convenient, Mr Dubler, to commence with Mr Archibald as strictly it is his application.

MR DUBLER:   Yes, of course.

MR ARCHIBALD:   Yes, your Honour.  Your Honour, our summons was filed on 6 October and we move on that.  We rely upon three affidavits.

HIS HONOUR:   Yes.

MR ARCHIBALD:   First, the affidavit of Gary Robert Tucker of 24 August 2017.

HIS HONOUR:   Yes, thank you.

MR ARCHIBALD:   His supplementary affidavit of 22 September 2017, and the affidavit of Stephen Flamer‑Smith of 27 October 2017.

HIS HONOUR:   Yes, thank you, I have read all of those and I will admit them as read.

MR ARCHIBALD:   Thank you.  We tender those, your Honour.

HIS HONOUR:   Yes.  Mr Rich, do you have any affidavits?

MR RICH:   We do.  We should indicate we move on a summons filed on 22 September 2017, which we hope your Honour has.

HIS HONOUR:   Yes.

MR RICH:   We read, or tender, the affidavit of Martin Bruce Jones, which was affirmed on 26 October 2017.  We also rely upon some of the documents and content of Mr Dimitrov’s 1 August affidavit but we understand that is to be tendered momentarily on his application.

HIS HONOUR:   All right.

MR RICH:   If your Honour wishes me to tender it separately, I could do that, but it is probably more convenient if we just await the tender by our learned friends.

HIS HONOUR:   Yes.

MR RICH:   But we will be relying upon some of the content of that affidavit and the exhibits thereto.

HIS HONOUR:   Well, there is no reason why that cannot be tendered now then.  Yes, Mr Dubler.

MR DUBLER:   Yes.  So firstly, the affidavit of the plaintiff, Peter Michael Dimitrov, sworn 1 August 2017, and I think plus the exhibits I tender.

HIS HONOUR:   Yes.

MR DUBLER:   Then there are three affidavits of my instructing solicitor, Sasha Ivantsoff, sworn variously 1 August 2017, 13 October 2017 and 10 November 2017.

HIS HONOUR:   Yes, all right.

MR DUBLER:   May it please – I tender those.

HIS HONOUR:   I admit all of those affidavits as read.

MR DUBLER:   Thank you.

HIS HONOUR:   Yes, Mr Archibald.

MR ARCHIBALD:   Thank you, your Honour.  If we may address your Honour upon our summons?  Could I take your Honour first to the settlement agreement?  The agreement is exhibit GT1, Mr Tucker’s affidavit of 24 August.  It is also found as exhibit PMD‑7 to Mr Dimitrov’s affidavit of 1 August. 

HIS HONOUR:   Which page number is that?

MR ARCHIBALD:   I actually have the version which is exhibit PMD‑7, I am sure which your Honour currently has.  I think ours might be unpaginated.  If your Honour has the paginated version, it is 235, Mr Dimitrov’s exhibit.

HIS HONOUR:   Yes.

MR ARCHIBALD:   Thank you.  At 247, your Honour sees clause 4 at point 9 on the page, using 10‑point scale.  This is the substantive provision – main substantive provision – of the deed.  Clause 4.1 provides that:

On and from the Approval Date, all Claims against the BEN Parties –

I leave out irrelevant further words:

will be settled as follows.

4.1.1The BEN Parties agree to waive Interest Relating to Overdue Amounts ‑

. . . 

4.1.2The BEN Parties agree not to commence or continue debt recovery proceedings against –

some persons for a period of time, and then:

4.1.10The Lead Plaintiffs for and on behalf of themselves and on behalf of all Group Members release the BEN Parties and their Related Entities . . . from all Claims.

I will return to that defined concept in a moment:

4.1.12Each of the Lead Plaintiffs for and on behalf of themselves and on behalf of all Group Members . . . agree that they will not bring or pursue, or procure that a third party bring or pursue, a Claim against the BEN Parties or their Related Entities –

If we go to the definition of “Claim” ‑ we find that at 241 – again, I will endeavour to work through the verbiage by leaving out immaterial words:

“Claim” means any claim . . . whether presently known or unknown . . . and all liabilities, losses, damages, costs . . . of whatever description . . . arising out of, or in connection with the contents of or the facts giving rise to, the PDSs, the Loan Agreements and or the allegations made in or the facts giving rise to each of the Proceedings.

“Proceedings” is defined at 244 take you to the “Group Proceedings”.  “Group Proceedings” at 242 is defined to mean various proceedings.  The Clarke proceeding is on line 2, it is SCI 2010 02882.  Then without going into the submission for the moment, we say that that definition of “Claim” plainly embraces matter that is beyond pleaded matters within the “Group Proceeding”.

The release provisions of clause 4 are to be operative on and from the approval date.  That defined expression appears at the head of page 241.  It is defined to mean:

the date upon which the Supreme Court of Victoria approves the settlement of the Group Proceedings pursuant to section 33V(1) of the Supreme Court Act –

The only other provision I want to draw your Honour’s attention to at the outset is clause 2, appearing at page 246.  Clause 2.1 provides that:

Settlement as between all parties to this Agreement is subject to and conditional upon each of the following conditions precedent being satisfied ‑

The relevant condition for our purposes is in 2.1.3, “Settlement Approval”.  That defined expression appears in the definition provisions at 245.  The expression means:

the Supreme Court of Victoria approving the settlement of the Group Proceedings pursuant to section 33V(1) –

Could I then deal with the approval order.  If your Honour is working from the Dimitrov exhibits, it is PMD‑8.  The exhibit note is at 262.  The order is at 263.  The relevant order is order 1 at 265.  Order 1 provides:

Settlement of the Group Proceedings in the terms contained in the deed of settlement –

Details are given of the document we have just looked at:

is approved pursuant to section 33V(1) –

Now, there are three things we wish to draw to the Court’s attention, to your Honour’s attention, in relation to the order and the underlying deed of settlement.  First, the order approves the settlement contained in the deed, that is, the compromise entered into as a matter of contract between parties to the litigation, for their own part and on behalf of group members, and it is the deed which operates to release the claim, not the court order.

The corollary of that is the second matter to which we draw your Honour’s attention:  the order does not extinguish any claims or rights, and the notion that the order extinguishes claims or rights is a central ‑ we submit, fallacious – element of many of the plaintiff’s arguments advanced in this matter.

The third feature to draw attention to at present is that the order is ‑ monolithic is an adjective that we have used in describing the circumstance.  It is a single approval of a settlement which, in turn, is a single composite settlement of a series of matters.  There is no separate order approving separate parts of the settlement deed and there is no separate component of the settlement deed which isolates particular claims and deals with those separately.  That bears upon the argument that the order is insusceptible of being partly set aside and the deed is insusceptible of partial analysis so as to exclude matters which are the subject of claims appertaining to individual court members.

HIS HONOUR:   Are you dealing with just order 1 at the moment or are these submissions concerned also with order 2?

MR ARCHIBALD:   We were focusing on order 1 ‑ ‑ ‑

HIS HONOUR:   Yes.

MR ARCHIBALD:  ‑ ‑ ‑ for that seems to be the subject of central, if not the exclusive, subject matter of the attack mounted by the plaintiff. So the significance of those matters is that the order constitutes the event which satisfied the condition precedent to the operation of the compromise agreement contained in clause 2.1.3 and thereby allowed the deed to operate according to its terms. The order satisfied the requirements of section 33V of the Supreme Court Act.  I am not sure in what form, if any, your Honour has the materials we have put on our list but under tab 1 we included provisions of the Supreme Court Act, including Part 4A, section 33V(1) provides that:

A group proceeding may not be settled or discontinued without the approval of the Court.

So the approval order not only satisfied the condition precedent in 2.1.3 of the deed but met the stipulation of the legislation which otherwise inhibited or precluded settlement.

Now, the next submission we wish to make relates to the plaintiff’s involvement in the argument before the Supreme Court in respect of whether approval should be granted or withheld.  The evidence before your Honour shows that the plaintiff was represented by legal representatives on the approval application.  Mr Dimitrov in his affidavit of 1 August at paragraph 24 deposed that he instructed his legal representatives to “oppose the settlement” and his legal representatives approved and did oppose the settlement – that was ERA Legal, was the firm name.

He says in paragraph 24 that the reason he gave those instructions to oppose approval of the settlement was because individual claims that he had may no longer be available to him were the settlement to be approved.  An argument to that effect was put to the court by ERA Legal.

HIS HONOUR:   Mr Archibald, just remind me, Mr Dimitrov was a party to the settlement or not?

MR ARCHIBALD:   Not directly, your Honour.  He was a group member.

HIS HONOUR:   Yes.

MR ARCHIBALD:   The lead plaintiffs entered into the settlement for and on behalf of themselves and for and on behalf of group members, and that was the language which your Honour saw at 4.1.10 and 4.1.12.

HIS HONOUR:   Yes.

MR ARCHIBALD:   Order 2 of the orders that his Honour made was the – I will call it the standard authority order, declaring that the parties, the lead applicants, the lead plaintiffs, had authority to enter into the compromise on behalf of group members and Mr Dimitrov was one of those group members.

HIS HONOUR:   So order 2 which, as I understand it, is not really the focus ‑ ‑ ‑

MR ARCHIBALD:   No.

HIS HONOUR:   ‑ ‑ ‑ of the plaintiff’s application, effectively operated to declare the position that would have been the case at common law, that is, that express or implied authority existed?

MR ARCHIBALD:   Yes, that order, which I think is made virtually every class action ‑ ‑ ‑

HIS HONOUR:   Yes.

MR ARCHIBALD:   ‑ ‑ ‑ is described as a declaration.  It is not phrased as a declaration but described as a declaration, therefore reflecting what is very likely, if not certainly, the position in any event.  It is said to be made under the auspices of section 33ZF within Part 4A giving the court a general power to:

make any order the Court thinks appropriate or necessary to ensure that justice is done in the proceeding.

So those are the mechanisms which obtain.

Now, in relation to the argument put, if your Honour has exhibit – or would go please to exhibit PMD‑6 to Mr Dimitrov’s affidavit.  Exhibit 6 is the reasons for judgement of Justice Croft on the approval application.  At page 203 your Honour will see paragraph 105 of the reasons.  At paragraph 105 his Honour said:

in the ERA Submissions –

so that is the firm acting on behalf of Mr Dimitrov:

it was contended that the settlement deed was not within the range of fair and reasonable outcomes for the group members as a whole, for the following reasons –

I leave aside the first paragraph of the submissions that his Honour extracts, and if one goes to the next paragraph of the submissions at about point 6 on the page, the submission was:

The proposed settlement is not fair and reasonable and in the interest of the general body of group members as a whole, when the Group Members (including the Group Member Applicants) lose a right of defence to any action taken in the future, which has not been the subject of these proceedings or the basis upon which the proceedings have been represented to the Group Member Applicants.

Then going to the last paragraph of the extracted submissions, the submission was:

that in the event that the current Group Proceedings proceeded to judgment, there would be no judgment given that could deny the Group Member Applicants the right to defend individually a claim made by the BEN parties on some other ground not contemplated by the current proceedings.

So as to the first of the paragraphs to which I have referred within paragraph 105 of the judgment, the express submission made was that the circumstance of lack of fairness and lack of reasonableness was the loss of the right of an individual member to an individual defence outside the proceedings.  The position in that last paragraph was contrasted with what would flow from the judgment, the judgment being confined to the litigated common issues.

So the very point which – the central point which is sought to be raised before this Court was advanced on behalf of Mr Dimitrov on the approval hearing and, in substance, what is sought to be done in this Court is to seek to support that submission with further propositions beyond those advanced to Justice Croft.  There was no circumstance inhibiting the propounding of those contentions in support of the opposition to the grant of approval.

HIS HONOUR:   Although one might characterise the plaintiff’s submissions in a different way as not really being submissions that are directed to what you described as the central point but being submissions that are directed to the question – the very question of jurisdiction which it seems was not raised before Justice Croft.

MR ARCHIBALD:   Yes, could have been raised but was not raised.

HIS HONOUR:   Yes.

MR ARCHIBALD:   That is really our point.  The focus was on what was said to be unfairness.  There could have been other foundations for the unfairness proposition advanced.  There was no preclusion of the capability of the legal representatives for Mr Dimitrov to develop those propositions.  For whatever reason they were not but, now, three years on we find endeavours being developed to seek now to put what was not put but could have been put.

HIS HONOUR:   Is that not really the starting point rather than the question of the merits or, in your submission, lack thereof?  The starting point really is the question:  if the submissions – or the issues - that the plaintiff now seeks to raise were not raised before Justice Croft and if there was a right of appeal, and there may now be a right of appeal with leave, then the starting point is, is it not, whether this Court should entertain now an originating application that effectively leapfrogs issues that the courts below have never considered?

MR ARCHIBALD:   Yes, that is our starting point by way of submission.

HIS HONOUR:   I see.  Yes.

MR ARCHIBALD:   We say that is exactly it.  We do add, if it makes a difference, that these propositions are substantially lacking in merit.  We could pitch it higher but we do not for present purposes, and that may have a bearing upon the way in which one views these matters, but the fundamental point is that they could have been put and were not put.  Other matters on this issue were put but not the currently sought to be propounded arguments.

So notwithstanding the advancing of everything that was desired to be put on behalf of the plaintiff, his Honour granted approval.  The plaintiff, for reasons we will develop in a moment, was able to appeal but did not, did not within time, did not seek to bring an application out of time before he was sued, did not even when he was sued bring an application out of time then and has not to this day and seems to forswear the exercise on the footing of inutility which, in our submission, is no answer.

It is also notable, your Honour, that the argument advanced before the Supreme Court was, and was only, that the deed of settlement propounded for approval would preclude reliance upon individual defences at a later point of time.  There was no proposition put that, properly construed, the deed of settlement would not capture those individual claims, and if that were the proper construction and was adopted by the court then the ground of resistance would go away. 

There was no alternative argument put that would obviate the vice ‑ that, if accepted, would obviate the vice that was said to attend the deed of settlement.  Yet here we seem to see emerging lately an endeavour to put a construction argument that would ‑ ‑ ‑

HIS HONOUR:   Why would that argument ever be put before Justice Croft?  I mean, if the deed on its proper construction did not exclude the claims then there would be no need to oppose the approval of the settlement.

MR ARCHIBALD:   Yes, one can conceive – just dealing with it analytically, one can conceive of a submission, look, the words of the deed are as follows.  They, in our contention, plainly do not oust individual claims, but we seek a ruling on that because if our submission were to be unsound then these claims would be ousted, in which event there should not be approval given; that might have been put but was not.

Yet now there seems to be an endeavour to put that argument, which could have been put at the time, perhaps out of an abundance of caution, and explain why there was not opposition, or that could have been done, but now it is sought to be developed, we submit opportunistically.  It is a contradiction of the stance adopted by Mr Dimitrov before Justice Croft.

HIS HONOUR:   That is one of the arguments that is put in the District Court, is it not?

MR ARCHIBALD:   Well, it is now being introduced here ‑ ‑ ‑

HIS HONOUR:   I realise it is one of the issues here, but it is also one of the arguments for resisting default judgment, or setting aside default judgment.

MR ARCHIBALD:   I think that is so, your Honour, but perhaps I should have that checked.

HIS HONOUR:   Yes.

MR ARCHIBALD:   Yes.  Whether it is the District Court or whether it is here, it is now sought to be availed of as a foundation of resistance and it was not put, or an explanation was not given for not opposing had that been the position before Justice Croft on the footing that the true construction of the deed did not oust these individual claims. 

So, in light of those submissions, we rely upon what Justice Gageler said in Plaintiff S3 in paragraph 9. That decision of his Honour has as the media neutral citation [2013] HCA 22. In our bundle it is under tab 7. At paragraph 9 his Honour adopted what this Court said in Metwally (2), namely:

Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

That passage, in our submission applies precisely with the circumstances of the matter before your Honour.  This is not a case in which the most exceptional circumstances obtain and the general proposition tells powerfully if not decisively in favour of summary disposal.  Paragraph 10 is useful for it ‑ ‑ ‑ 

HIS HONOUR:   I can see how that argument may apply in relation to the jurisdictional question but it does not quite apply in relation to the question of construction of the deed, because there would have been no purpose in advancing an argument about the construction of the deed that says “this deed does not apply to us” because if it did not apply to the individual claims then there would have been no need to oppose the approval of the settlement.

MR ARCHIBALD:   Yes.  If one took that view and if one was comfortable that one had the correct construction of the deed, one might not venture it at all.  If there were any shadow of a doubt then one would have raised it and, in effect, asked for a declaration there and then to make certain, as a matter of judicial decision, what was adopted as the view of the advising legal representatives.  If one failed in that argument then one would develop the alternative.

HIS HONOUR:   But the shorter point in relation to the construction issues is that if those construction issues are currently before the District Court, it would be very unusual for this Court to hear an originating application in relation to construction issues of a deed that do not raise any peculiarly unique issues and which issues are currently being litigated.

MR ARCHIBALD:   Yes.  There would be no warrant at all for not developing that proposition before the Court in which the question is raised and having it dealt with and, if one was dissatisfied with the result, seeking to pursue challenges to it through the orthodox routes.  There would be no warrant for an originating application in this Court on a construction question which raises, as far as we have been able to discern from the arguments, no issue of principle concerning the construction of contracts and deals with an idiosyncratic settlement deed and no more.  It is as straightforward an argument on a bespoke contract as one could see.

Putting it differently, even if that matter had come up through the appeals system and came before this Court on a special leave application, one might expect the familiar response of the Court to a special leave application:  there is nothing here that this Court should look at for it raises no matter of principle and deals only with a particular contract between the parties.

The only other matter to draw your Honour’s attention to in Plaintiff S3 is the following paragraph, paragraph 10, where his Honour referred to the D’Orta‑Ekenaike decision of the Court – the passage in the reasons of the Court in that matter referring to:

A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances. 

That is what is sought to be done here:  to reopen a long‑closed piece of litigation in order to agitate either something that could have been and should have been advanced before the court at the time or, on the construction points led to take a prosaic matter of construction that is before another court at the moment or, if not actually before that court, could be before that court.  That would be the proper forum in which to advance that matter.

We make these further observations by way of submissions.  First, Mr Dimitrov did not opt out of the group.  If he did not want to be part of the further litigation and any prospective settlement of the matter, he had a right to opt out under section 33J.  He did not avail himself of that.  He had an ability to bring an application before the court under section 33KA for an order that he cease to be a group member.  He never made that application.  Opting out as a matter of right, ceasing to be a group member, is not a matter of right.  The court may make such an order where it is just and expedient to do so. 

If the contention of Mr Dimitrov was that it was not just that he be subjected to the settlement which would preclude the pursuit by him of a subsequent argument then he may have made that application.  I cannot say to your Honour that it would have succeeded, but Mr Dimitrov cannot say, “I endeavoured to get out,” and he failed to get out and, “That is what I am saddled with, what I have”.

As to the availability of appeal, the general provision in the Supreme Court Act is section 17(2). This is part of the material under tab 1 in our bundle, your Honour. Section 17(2), as with many State Supreme Court provisions, provides that:

an appeal lies to the Court of Appeal from any determination of the Trial Division constituted by a Judge of the Court.

That is the central provision.  There is a qualification:  An appeal does lie:

Unless otherwise expressly provided by this or any other Act ‑ ‑ ‑

HIS HONOUR:   There are express provisions in the Act in some sections that an appeal does not lie, are there not?

MR ARCHIBALD:   Yes.  Not in part 4A.

HIS HONOUR:   Yes.

MR ARCHIBALD:   Your Honour, in the form of the legislation which was in our bundle, the appeal was as of right.  Amendments were made, I think in 2014, to provide that, in the case of all civil appeals, leave of the Court of Appeal was required to be obtained.  That is in section 14A.  Might we provide to your Honour a copy of the amended legislation? 

HIS HONOUR:   Was that amending legislation passed before or after the decision of Justice Croft?

MR ARCHIBALD:   Before.  I will have that double‑checked.  It commenced on 10 November.  I am indebted to Ms Gordon.  It commenced to operate on 10 November.  His Honour’s decision was on 11 December.  Leave was required, leave being given by reference to the central criterion of whether there is a real prospect of success – real, not fanciful is the way it has been interpreted by the Court.  Leave was required.

Subject to leave, the decision was appellable.  If there were merit in it, leave would be granted.  Mr Dimitrov, as a group member, was not a party to the proceeding ‑ he was not a party in the classic sense – but would have been able to bring an appeal.  He would do so on general principle, as a person affected by the order. 

One sees that principle illustrated, for example, in Cuthbertson, which is under tab 14 of our bundle, page 25, point 2, but more clearly perhaps under the provisions of section 33ZC of the Supreme Court Act.  Those provisions are facultative.  They are essentially procedural in nature.  They are dealing with the circumstances in which an appeal would be brought in respect of a group proceeding and cater for particular matters arising in that framework.

The first four subsections of section 33ZC are essentially concerned with who are the parties to such an appeal, the appeal itself being granted in section 17. So subsection (1) provides:

On an appeal by the plaintiff on behalf of group members and in respect of the judgment to the extent that it relates to questions common to the claims of group members, the parties to the appeal are –

and then they are set out.  There is a further version of that in subsection (2), where there is a sub‑group representative party bringing the appeal.  Then subsection (3) deals with an appeal by the defendant and again states who the parties to the appeal are.  Subsection (4) deals with who the parties to an appeal are where the question on appeal:

relates only to a claim of an individual group member –

Subsection (5) is clearly facultative.  In substance, it extends the time within which an appeal might be brought:

If the plaintiff or the sub‑group representative party does not commence an appeal within the time provided, another member of the group or sub‑group may, within a further 21 days, commence an appeal –

Either that is simply providing a further time within which a member, otherwise entitled to bring an appeal, can bring an appeal, or, if it happened to be the case for some reason that the member could not otherwise appeal, then subsection (5) might be substantive.  It might facultatively confer upon a member an ability to appeal.  Our submission is that the member could appeal anyway, understanding “appeal” in the sense of apply for leave.

HIS HONOUR:   Why would subsection (5) not simply complement subsections (1) and (2)?

MR ARCHIBALD:   We submit that that is the better view of it.  But were it the case that it was not otherwise competent, it was not otherwise standing, in a group member to appeal, and the verbiage of subsection (5) may be taken to confer that capability, if nothing else the subsection is predicated upon an entitlement of the group member to bring an appeal and then does no more than extend the time ‑ ‑ ‑

HIS HONOUR:   But on any view, subsection (5) could not apply in this case because there is no suggestion that an appeal that would be brought on application for leave to appeal would be brought by the plaintiff as representing the group members or the sub‑group members.

MR ARCHIBALD:   No, quite the contrary, your Honour, because subsection (1) covers all appeals that relate to questions common to the claims of group members.  Here, approval of a settlement which covers all of the claims, in our submission, relates to questions common to the claims of group members.

HIS HONOUR:   But that is where the appeal is brought, in the final words of subsection (1), by the plaintiff as the representative of the group members.

MR ARCHIBALD: Yes, and if that is not done then any group member can pick up the appeal cudgels. When the group member does that, the group member represents the group members or sub‑group members, as the case may be. If that is not the position then one would have the extraordinary circumstance that there was no capability for anybody, plaintiff or group member, to bring an appeal against, here, an approval determination. That is a most unlikely construction of the operation of section 17 combined with section 33ZC.

It is only if section 33ZC covers the field and ousts the section 17 entitlement to appeal that one would have this conundrum. We say section 17 operates, and 33ZC, including 33ZC(5), simply deal with parties and time – no more.

HIS HONOUR: Section 33ZC deals with parties in circumstances in which an appeal might be sought to be brought by a person who was not a party, as in this case, before the primary orders.

MR ARCHIBALD:   That is true of 33 ZC(5), not (1), (2) or (3).  Subsection (4) deals with a non‑party case, for the group member will not be a party.  Yet again, 33ZC(4) is predicated upon the view that the group member can appeal and all that (4) is dealing with is who are the parties when the group member brings that appeal.

HIS HONOUR:   If your submission about (1) and (5) is correct then (4) would not cover the circumstances of this case; it would be (1) and (5) that would cover it.

MR ARCHIBALD:   Likely, because, as I have put, our submission is that the subject matter of the appeal, the challenge to the approval, is something that relates to questions common ‑ it affects everybody.  But if we are wrong about that then subsection (4) may be engaged, not as the source of the right to appeal but just as the characterisation of what is occurring in order that one might see what it is that the statute stipulates as to parties to that appeal.

HIS HONOUR:   Does that therefore mean that the first question is one of determining whether the issues which are raised, or the questions that are raised, are ones that relate to questions that are common to claims of group members?  If that is answered in the affirmative then any appeal that is brought must be brought in a representative capacity either under subsection (1) or, if the subsection (1) appeal is not brought, then under subsection (5).

MR ARCHIBALD:   Yes.

HIS HONOUR:   Only if that is answered in the negative does subsection (4) then become engaged.

MR ARCHIBALD:   Yes, your Honour.  The starting point for the question did Mr Dimitrov have an ability to bring an appeal in section 17?  If one is then concerned with capacity and parties and time that is when one gets into 33ZC, which is not a controversy for present purposes.  Our submission is that there was an appeal route.  The role of 33ZC for which we contend, and the facultative nature of it is, in our submission, able to be seen in report No 46 of the Law Reform Commission. 

I do not think I need to take your Honour to the paragraphs unless your Honour indicates it now, but paragraphs 242 and 245 of that report, in our submission, support the view for which we have contended.  The relevant pages or paragraphs of the report are under tab 18.  That is a report, of course, referable to the Federal Court regime.

HIS HONOUR:   Which is the model.

MR ARCHIBALD:   Which is the almost exact model for the Supreme Court regime.  So the protestations of Mr Dimitrov, the plaintiff, that he was not able to appeal, in our submission, are unsound.  He could have and should have.  There is nothing to suggest that he took any step to endeavour to appeal and was refused.  He seems to advance as a justification for not having done so that – I think this is the submission – leave would have been refused because he could not sufficiently demonstrate detriment by reason of the approval order that we sought to challenge. 

This is associated with his notion that he was entitled to wait until he was sued by the bank, and before he was actually sued he could not have obtained leave because he could not show a detriment.  That seems to be the argument.  In our submission, that is unfounded.  No authority is relied upon for the contention advanced.  The ground upon which leave is granted or withheld is substantially are there real prospects.  That is to say that, looking at the merits of the contention, error resides in the decision below, not, if you like, the possible financial consequences. 

In any event, the gravamen of the challenge was that there was an approval granted which should not have been granted, and that was the detriment and remains the detriment to this day.  If detriment needed to be shown, it could have, and our primary submission is that there was no need for detriment to be shown.

Under the rules, an application for leave should have been brought within 28 days of the decision.  The relevant rule is rule 64.05 of the Civil Procedure Rules in the Supreme Court.  That rule is under tab 4, page 418 of the print.  Sub‑rule (1):

An application for leave to appeal . . . shall be filed‑

(a)within 28 days after the decision –

Then enlargement of time is permitted by sub‑rule (1)(b):

within such further time as the Court of Appeal or the Registrar may allow -

So there is no endpoint for enlargement of time.  Had an appeal been brought, the Court of Appeal could have decided all the substantive issues which Mr Dimitrov seeks now to raise, including, if it mattered, the construction point, and no occasion for an application for prerogative writs would ever have arisen, and the Kable (2) point would not have arisen either.

The Kable 2 point is there only because Mr Dimitrov did not appeal and therefore Justice Croft’s orders are still standing.  That is what causes the Kable problem for Mr Dimitrov.  He has generated that problem; it was not a freestanding issue with which he otherwise needed to deal.

HIS HONOUR:   And the question of who is an officer of the Commonwealth, to the extent to which certiorari is sought, based upon that provision.

MR ARCHIBALD:   Yes, but if the question is were the orders of Justice Croft beyond power, that was a matter susceptible of argument before his Honour and susceptible of argument and of determination by the Court of Appeal, not uniquely available only through the route of a constitutional writ in this Court.

HIS HONOUR:   Yes, but I think the point is that that issue, the issue of whether Justice Croft was acting as an officer of the Commonwealth, separately from the question of whether he was acting in federal jurisdiction, that first question only arises in this Court’s original jurisdiction. 

MR ARCHIBALD:   Yes.

HIS HONOUR:   It would not arise if the matter had been brought by way of appeal.

MR ARCHIBALD:   It does need to be addressed; it is not a barrier.  All of these issues arise only because the plaintiff has come here.  Having come here, there are various criteria which need to be met, not if the orthodox available route had been adopted at the time, or late, would not be adopted.  If an application were made today to the Court of Appeal for leave to extend time, there would not be an officer of the Commonwealth issue. 

HIS HONOUR:   Or, presumably, an issue about the construction of section 500(2).  The Court of Appeal would then just decide whether to grant leave or not.

MR ARCHIBALD:   Maybe.  I am sorry, we have stood aside from section 500 a little and I am not as close to the issues as I perhaps should be.

HIS HONOUR:   The short point is that it seems that this originating application multiplies hurdles against the plaintiff rather than reducing them.

MR ARCHIBALD:   Yes, indeed, certainly so far as the constitutional limb of it is concerned.  Of course the other thing that seems to be happening is that by reason of the plaintiff’s inaction the circumstance was that nearly two years after the group proceedings were closed and over this Court decided Timbercorp.  The plaintiff now seeks to latch onto Timbercorp in an endeavour to reopen what was concluded and dead, if I can use a colloquial expression – what was well concluded and over from years before ‑ in trying to avail himself of subsequent decisions. 

As your Honour knows, we have made submissions that that is misconceived in any event.  That is really what the Court of Appeal and the Supreme Court has decided in Pekell.  There is a vast difference between a matter proceeding to judgment and what flows from that, which is what Timbercorp decided, and what the position is if a settlement is entered into. 

So seeking to harness Timbercorp is of no avail or assistance to the plaintiff in substance, in our contention, but in any event what he is doing is really trying to capitalise upon his delay, invoke some circumstance of jurisprudence that has emerged in the meantime, and then seek to reopen something that was concluded and finished and which has been implemented in so many ways in the intervening three‑odd years.

Again, it seems to be put on behalf of Mr Dimitrov that one would not expect to get very far in the Court of Appeal if one went there now, in light of Pekell.  That is, of course, focusing upon the Timbercorp limb of the argument and not really focusing upon the other matters.  But even in relation to the Timbercorp argument, the contention of the plaintiff is that Pekell is plainly wrong. 

We contest that.  Indeed, we pitch the matter near the other end of the spectrum.  But if Mr Dimitrov were to be right and Pekell was plainly wrong then the Court of Appeal, with the benefit of an argument demonstrating plain error, would of course entertain an appeal and, if convinced of the correctness of Mr Dimitrov’s argument, give effect to it.

HIS HONOUR:   Are all of the issues that are raised by the plaintiff in his originating application matters that were before the Court of Appeal in Pekell or is it just the Timbercorp issue?

MR ARCHIBALD:   Just the Timbercorp, I think, is the correct way of putting it.  Of course, that tapered off more or less into the construction argument, but Pekell certainly did not include the matters said to be constitutional issues for this Court.

HIS HONOUR:   It is not really then to the point whether the Court of Appeal might be satisfied or not that its earlier decision in Pekell is right or wrong in relation to Timbercorp.  The shorter point is that none of these constitutional issues have been raised.  If the constitutional issues have merit then they presumably could succeed.

MR ARCHIBALD:   Yes, indeed.

HIS HONOUR:   Subject to the questions of leave and all the other matters.

MR ARCHIBALD:   Yes, and their merit, of course, would bear upon the grant of leave.

HIS HONOUR:   Yes.

MR ARCHIBALD:   In light of all of those considerations, we say that Mr Dimitrov cannot step around the consequences of his failure to bring an available appeal by seeking to invoke this Court’s original jurisdiction in respect of prerogative writs.  We rely upon, as your Honour knows, what Justice Nettle said in the CFMEU Case, at paragraph 22, that, generally speaking, a litigant must exhaust his appeal rights before this Court will entertain an application for a prerogative writ directed to achieving the same result as may be achieved in substance on appeal.

The argument of the plaintiff is “I can’t go elsewhere”, at least for the Kable (2) reason, but as we have submitted the reason for a Kable (2) problem is born of the very failure of the plaintiff to take the steps that were available to him.  He has, in substance, generated that problem to the extent to which it is a problem.  That, of course, is the effect that the construction of taking that various aspect ‑ ‑ ‑

HIS HONOUR:   It does not really affect any of the arguments, does it, because the appellate route is not a route that is affected by Kable (2)?

MR ARCHIBALD:   No.  The appellate route is still open but it is really the – I think Mr Dimitrov says well, if I go to the District Court and advance some of these arguments I am going to face a problem that will be said that that is an extant order of a superior court, and so it is.  But it is only extant and continuing, in effect, because of the failure of the plaintiff to adopt the route that he should have adopted.  So we submit the invocation of this Court’s jurisdiction is a vexatious one in light of the circumstance that the plaintiff will not follow the correct and available route.

The plaintiff needs an extension of time to even bring the certiorari claim.  We argue, as your Honour knows, that time should not be extended.  He seeks additionally prohibition and injunctions but they, in the circumstances of this case, are really derivative upon the quashing of the order and so they really had no independent role to play. 

We might add that there is – given the nature of the Supreme Court order, given that it was an approval order and no more, there is no further work for that order to do.  There is no enforcement of it which falls for consideration and therefore there is no subject matter upon which a writ of prohibition could, in any event, operate.

The plaintiff in his consolidated submissions draws attention to the principles exemplifying caution in ordering summary judgment in decisions such as Fancourt, Spencer and so on, but those are matters where the merits are the central circumstance which is advanced as the ground for summary judgment.  Our application is not so founded and therefore those cases are inapposite.

Our application for summary judgment does touch upon a number of the matters which bear upon whether extension of time should be granted in respect of the application concerning certiorari.  Without going fully into that at the moment what we do say is that the plaintiff has delayed substantially in the course that he has adopted.  He seems to submit, as we have indicated, that he was entitled to wait and see whether he was sued.

HIS HONOUR:   If your submissions about the appellate route are correct, these are matters that would be more properly considered by the Court of Appeal in an application to extend time.

MR ARCHIBALD:   Yes, indeed.  We do say there would be no warrant in the abstract for waiting and seeing, but on the evidence in any event we would submit that it is clear he was going to be sued and he was sued really as soon as the hurdles were removed.  The principles on extension of time are that the limitation period is rigorously applied and extensions are granted only in exceptional cases and only if necessary to do justice between parties.  That is Justice McHugh in Ex parte Marks – paragraphs 13, 15 and 16.  Marks is under tab 5 in our bundle.

So that approach would not support an extension of time.  The merits are to be considered.  It would only be if there were strong merits to set against other disentitling matters.  We submit, as your Honour knows, that the merits here are very remote and there is the public interest to take into account.  The main public interest is finality in determined litigation, not reopening old matters.

There is no necessity for relief from this Court in order to do justice.  There was no necessity.  There is still an ability to go to the Court of Appeal.  The focus on the prerogative writs is really a resort fastened on by

the plaintiff because of the consequences of his failure to take the route which he should have taken.  If the Court pleases.

HIS HONOUR:   Yes, Mr Rich.

MR RICH:   Thank you, your Honour.  The plaintiff’s application should be dismissed, firstly on the ground that it is not appropriate for the original jurisdiction of this Court to be invoked in respect of orders that were amenable to appeal.  Further, the arguments which he seeks to advance in this Court were not advanced, although they could have been advanced before his Honour Justice Croft.

Second, there is no reasonable prospect at all of this Court granting what we might term the partial relief sought by the plaintiff - I will develop that but, in effect, the idea that you can set aside a settlement in part or set aside and quash an order in part in the circumstances of this case, and, as our learned friends have submitted, he requires an extension of time and the Court ought not grant that extension in the circumstances of this case.

We will develop each of those points orally today.  We will obviously endeavour not to repeat matters that our learned friends have said and otherwise rely on our written submissions.  We do submit to your Honour that there is not any substance to the proposition that the plaintiff has and had no right of appeal to the Court of Appeal in Victoria.  Now, whether one gets there via 33ZC or 17(2), one gets there.

It is plain that the orders that his Honour Justice Croft made affected in an important way the legal rights that the plaintiff had.  It would be contrary to all principle to say, absent some clear statutory provision making it plain that that was what was intended, that the plaintiff has no right of appeal from that decision.

The terms of section 17(2) of the Supreme Court Act are quite plain in saying “Unless otherwise expressly provided an appeal lies”. Your Honour will not find any express words in section 33ZC abrogating that right.

HIS HONOUR:   That was Mr Archibald’s submission.

MR RICH:   Thank you, your Honour, I will not trouble your Honour with it any further.  Now, even if that were all wrong and there was nothing in the Supreme Court Act that would assist the plaintiff to appeal he could appeal to this Court subject to special leave under section 73(ii) of the Constitution. Obviously, he would need to demonstrate that he meets the requirements for special leave.

A number of submissions which the plaintiff makes to your Honour in support of his application and in opposition to ours are that it is somehow more efficient, quicker and cheaper to just stay in the High Court.  It is a submission, with respect, that your Honour should not seriously entertain.  It is probably true for every disappointed litigant that it would be quicker and cheaper to avoid the Court of Appeal altogether and go directly to the High Court.

HIS HONOUR:   Not necessarily.  If the matter gets remitted it could be a lot more expensive.

MR RICH:   Indeed, if this Court refuses to deal with it.  My point simply is that the argument that it is cheaper to stay here rather than go the appellate route really is one that would be available to most every disappointed litigant at first instance and it is not a basis upon which your Honour would entertain an application in the original jurisdiction of this Court.  It misconceives the role of this Court and it presumes, rather than demonstrates, satisfaction of the special leave requirements.

The fact that the plaintiff could appeal is obviously a powerful reason to dismiss and, indeed, a sufficient reason to dismiss the application and we would urge your Honour to take that course.  As our learned friends have submitted, and we urge your Honour to accept, the failure to raise what I might call the jurisdictional or absence of power points that he now relies upon before his Honour Justice Croft is another reason of principle why your Honour would not entertain an application on those grounds in this Court.

Now, so far as what we referred to as the partial relief is concerned, our learned friends took your Honour to some of the provisions of the settlement deed.  Might we just briefly return to that, your Honour.  Your Honour will find it commencing at page 235, part of exhibit PMD‑7 to the affidavit of Mr Dimitrov of 1 August 2017.  As your Honour appreciates, prayers 1 and 2 of the summons – which I will not take your Honour to, but they use the language of:

setting aside . . .  insofar as the orders purport to bind group members to the Settlement Deed in respect of their individual claims and defenses –

The entire application substantively is founded on the proposition that relief of that nature is feasible and available in this Court, that is that this Court would entertain an application to set aside Justice Croft’s orders in part.

Now, we submit to your Honour it is not feasible at all.  Your Honour has been taken to Justice Croft’s orders and your Honour will have immediately appreciated that what his Honour approved was one entire settlement.  If your Honour wants to see the orders they are at page 265 of the exhibit.  If your Honour sees, what was approved was:

Settlement of the Group Proceedings in the terms contained in the deed of settlement –

Similarly, order 2 was an authorisation:

to enter into and give effect to the deed of settlement –

in its entirety.  His Honour did not approve or authorise parts of a settlement.  He approved the entirety of it and if this Court were to prohibit or quash only part of his Honour’s orders in the fashion that the plaintiff urges, what would really be happening is that this Court would be transforming those orders so that what is left approved is something quite different and materially different from the settlement which his Honour Justice Croft approved and which was executed and, prior to that, agreed.  I took your Honour to the settlement deed.  Might I go back to that.  If your Honour could kindly go to page 235 and then turn to ‑ ‑ ‑

HIS HONOUR:   It may be a very large question as to whether a writ of certiorari could issue in the terms that the plaintiff seeks if, for example, the court were satisfied that the orders could not purport to bind group members to the settlement deed in respect of their individual claims and defences, and was otherwise satisfied that the remainder of the settlement deed could be approved.  But the issue then, I suppose, is not the question of the scope of the writ of certiorari, it is a question of the extent to which that writ could issue to reformulate, or to approve, an agreement that the parties have never entered into.

MR RICH:   Yes.  With respect, your Honour has put it much better than I have in the sense that it is not so much a question of power as a question of whether this Court would ever exercise its discretion so as to make an order having this effect, that is to undo and, in effect, remake an agreement of this character in such a way that very substantial changes in rights are effected.  It is really to point up the very substantial changes that would be effected that we take your Honour to this document now. 

Our learned friends have already taken your Honour to the definition of “Claim” on page 241.  We will not trouble your Honour with that again.  Your Honour will see the defined term “Directors” on the same page.  Those are our clients.  If we might then take your Honour to page 245, our learned friends took your Honour to the definition of “Settlement Approval”.  Might we just emphasise the concluding words of that definition – “on the terms contained in this Deed”.

Might we then take your Honour to page 246 and your Honour will see that there are set out a series of conditions precedent to the operation of this settlement.  The first of them in 2.1.1 is, if I might summarise, order 2 made by Justice Croft.  It was a condition precedent of this settlement that his Honour would make an order in the terms or to the effect of order 2.  Similarly, clause 2.1.3 is Justice Croft’s order 1, in effect.  These parties never settled or intended to settle on any other terms than – sorry, in any other circumstance than one in which orders to the effect of orders 2 and 1 were made.

Similarly, a further condition precedent in clause 2.2 was that the scheme of arrangement would be approved by the court.  Now, we will come to this in a moment but what was envisaged was that liquidators would propose a scheme of arrangement and it was only when that scheme of arrangement became effective, following approval by the court, that a number of the releases in this document, which we will come to in clause 6, became operative.

It is not a matter that particularly affects our learned friends, the BEN parties, because they had releases in clause 4 which were not subject to that particular condition, but the releases in clause 6, as we will show your Honour, were.  If we might go directly to clause 6, which your Honour will find commencing on page 254, your Honour will see in the introductory words of clause 6.1 that these releases were subject to, relevantly, not only settlement approval, but the scheme of arrangement becoming effective.  As your Honour knows, that subsequently happened and “all Claims” against all of those entities, including our clients, the directors, “will be settled as follows”.

Your Honour sees that what was envisaged is that once a scheme of arrangement is approved, and your Honour will immediately appreciate that what that means is that all of the scheme creditors, as defined for the purposes of the scheme, were bound by the releases that were going to be proposed as part of the scheme.  Then the insurers would pay over $23 million.

That was paid on terms, if I could direct your Honour’s attention to clause 6.1.3 that the lead plaintiffs for and on behalf of themselves and all group members will release the Great Southern entities and the directors, et cetera, from “all Claims” and further releases are provided for in clauses 6.1.10 – sorry, 6.1.10 is probably more accurately described as a covenant not to sue and 6.1.11 plea in bar and 6.1.12 is the provision whereby it was agreed that the group proceedings would be dismissed with no order as to costs.

Now, we submit that when your Honour has regard to the integral character of the release of “all Claims” to the settlement that was effected by this deed, including the agreement to pay many millions of dollars, your Honour will appreciate immediately the inherent unlikelihood that any court would make an order which had the effect that my clients and their insurers and the BEN parties, et cetera, were bound by this document without the benefit of releases on behalf of group members.

It would be foolhardy in the extreme for any defendant in circumstances like this, that is when your Honour appreciates there were a multitude of class action proceedings, there were other people claiming, making demands and what was done is that there was a settlement releasing all claims, and it is inherently unlikely that any defendant in those circumstances would have entered into any settlement which did not contain releases, not only of what happened to be pleaded, but of any other claim that might be made now or in the future by known disaffected parties, including the group members.

The relief sought by the plaintiff would, if granted, fundamentally alter the arrangements embodied in the deed and approved by his Honour Justice Croft and to treat that settlement as effective only in part would be to substantially change it in a way that this Court would not entertain.  It is not something that would be done applying contractual principles.

We have provided your Honour with a bundle – we do not need to go to it, but it includes at tab 17 the case of United Group Rail Services v Rail Corporation where some of the authorities are collected in paragraphs 90 to 95 and your Honour will appreciate, as a matter of ‑ ‑ ‑

HIS HONOUR:   It is a short point, but as a matter of contract you would not rewrite a contract to impose the burdens without benefits.

MR RICH:   Indeed.  Nor would you, as a matter of considering a writ of certiorari attacking an approval grant relief which had the effect of altering that which was approved in this way.  Now, so far as extension of time is concerned, we rely on the decision of his Honour Justice McHugh in Re Commonwealth of Australia; Ex parte Marks at paragraphs 13 to 16 which was referred to by our learned friends and, in effect, after a year, these time limits should be rigidly applied.

HIS HONOUR:   This, in effect, has to be an alternative submission, does it not, because if your primary submission about the appellate route being the appropriate route is correct, those sorts of issues would appropriately be considered on any application for leave to appeal?

MR RICH:   Yes, your Honour.  I do not mean this if your Honour – if your Honour was of the view that the application ought to be dismissed then obviously we do not need to trouble your Honour or your Honour does not need to be troubled with extensions.

HIS HONOUR:   If there were no appellate route and it were otherwise appropriate for this Court to entertain the possibility of originating relief then a question would arise as to whether the delay was sufficient to allow this proceeding to be summarily dismissed in light of all of the circumstances, including the merits and so on.

MR RICH:   Indeed.  Might we just refer your Honour to the evidence of Mr Tucker?  Just in terms of what has happened since Justice Croft’s orders were made, the evidence in Mr Tucker’s affidavit of 24 August 2017 at paragraphs 9 and 10 gives your Honour a flavour of the particular problem and perhaps exemplifies why finality is so important.

In those paragraphs Mr Tucker tells your Honour that since the settlement approval the BEN parties have successfully finalised some over three and a half thousand open loan accounts by way of either judicial proceedings or through settlement with individual borrowers.  So that there are literally thousands of people who have proceeded on the basis of the settlement agreement and the orders of Justice Croft, which could have been appealed, but were not.  That is a practical demonstration of the reasons why an extension of time would not be granted in this sort of a case.

The other point of exceptionality about our case is also we do say that there is no appeal rights, or there is at least a risk of there not being an appeal right, that Division 5 of Part 4 does, in effect, we say – or at least there is a risk there could be found to be a code.  We set out the reasons exhaustively in our written submissions.

But if I could make on additional point orally, our friends have provided your Honour with a reference to the explanatory memorandum to the Victorian Bill. I do not know if your Honour has it. If one goes to page 7 of the explanatory memorandum, there is an explanation of what Division 5 does. There is the sentence that Division 5 sets out the appeal procedure in group proceedings, section 33ZC.

HIS HONOUR:   That is the procedure for appeals?

MR DUBLER:   Yes, but we say that that is suggestive that it covers the field and that there is the specific provision for an individual group member to appeal and become a party to an appeal, but otherwise if it is not there, we say that ‑ or at least there is a real risk that the construction of that section will be that it sets out when a group member can appeal.  Otherwise, if my friend is right, at each instance where there is an appeal by a plaintiff even, or group members, they have a right to appeal as well.  That would seem to be manifestly inconvenient.  The whole point of group proceedings is that a group member proceeds through the lead plaintiff and there is only an exception to that, and that is in subsections (4) and (5) and not otherwise.

HIS HONOUR: I do not think that was the submission of any of the defendants. I think the way the defendants put their submissions about the construction of section 33ZC is that anything that was in respect of a common issue could either be brought by a plaintiff in a representative capacity, or if a plaintiff in a representative capacity did not bring that issue or that question then, under subsection (5), any other member of the group could do so in a representative capacity. There is nothing inconvenient about that, in fact just the opposite. The convenience of it is that it avoids multiplicity of proceedings being brought in relation to questions that relate to the same issue.

MR DUBLER:   Yes, but that does not deal with the question of a single group member who wishes to agitate what has happened to a non‑common issue.  It may be just an individual claim affecting that one group member.  That does not arise.

HIS HONOUR:   If it truly does not even relate to, which is an expression of the broadest import, any questions that are common to claims of group members, then that individual would fall within subsection (4).

MR DUBLER:   No, because we say that what is dealt with there is the provision of Part 4, where the court gives to an individual group member the right to bring forward an individual claim.  When that is dealt with by the court, that gives an appeal right under 33ZC(4), but that is not the case here.  We do have the problem in addition to that:  while it relates to non‑common issues, the category of people affected goes beyond the single Mr Dimitrov.  We know that there are others who are similarly placed.

HIS HONOUR:   In other words, it does not relate only to the claim of an individual group member.

MR DUBLER:   Yes. 

HIS HONOUR:   It could relate to questions that are common to claims of group members.

MR DUBLER:   Not to claims of group members in the sense of claims being brought in the class action.  That is the problem.

HIS HONOUR:   Yes, but it only relates to that; it is not directly raising those questions.

MR DUBLER:   Yes.  If one views Division 5 appeals through the prism of Timbercorp, the difficulty, we say, becomes clear, that it was never within power or contemplation that non‑common issues could have been the subject of any substantive orders that give rise to the difficulty.  Appeals for non‑common issues are not dealt with there because it is not within the scheme of the Act to deal with those, and that is why there is possibly, at least, no right of appeal afforded.  That would also make it this case, as well as all of the reasons we have mentioned, why this case is unusual and exceptional.

If I could just touch upon some of the points about delay, assuming it to be possible that certiorari is required.  Again, we would seek to say that, whilst on the face of things there is a significant period of time, particularly because of the nature in which a group member peculiarly gets affected by a class action, the delay needs to be seen in that context.  The first proposition is that it is somewhat impractical and unworkable to require a single group member to either appeal or take out a prerogative writ where the bank itself has not commenced any proceedings and that there is no way of knowing whether embarking upon such an expensive, difficult course is required.

One of the exceptions about delay is where it is said that the defendant itself has caused delay, so most of the period of delay here was in the bank party’s actually taking any proceedings to enforce the loan.  It would only be at that point that there would be consideration of the defences and whether it would be required to raise something that was effected by the deed of release.

HIS HONOUR:   Mr Dubler, is there any evidence that your clients did not expect or had no reason to expect that a bank would not attempt to recover its loan?

MR DUBLER:   Probably not in those terms.

HIS HONOUR:   Or an assignee would not attempt to recover the amount that is owing, either by letter of demand or by action?

MR DUBLER:   I think the direct answer to your Honour’s question is no, but the fact that Mr Dimitrov was not the subject of any actual claim or proceedings, combined with the fact that Mr Dimitrov says that he is a person without resources, would mean that one could not necessarily think it was obvious or necessarily going to be the case that this would end up in court, that decisions to proceed against such persons are not always obvious, so we would say more or less that it is uncertain at least whether or not anything would happen.  Otherwise the timing here is March 2016, which is about a year and two or three months after the orders of Justice Croft, before the bank did anything.

HIS HONOUR:   The loan was secured, was it not?

MR DUBLER:   No, your Honour.  That is one of the peculiar features of them.

HIS HONOUR:   Yes.  Thank you.

MR DUBLER:   The second period of delay was because – and I have made the point that Mr Dimitrov, who says that he is without resources – that is one of the categories of exception as well.  The other factor is the importance of the case.  I have submitted to your Honour that this is a very important case.  Next, the second period of delay was because the plaintiff went before the Financial Ombudsman Service.

It is put against us that pursuing alternative avenues is not usually a ground for excusing delay, but what we have here is not just an alternative avenue but part of the alternative avenue is that that stays proceedings, so there is an inconsistency between invoking the Financial Ombudsman Service and proceeding in court.  Where you have someone without resources, and that is really what the Financial Ombudsman Service is for, it stays the proceedings.  No enforcement can be given.  Generally it is a low‑cost, no‑lawyer avenue of alternative relief.  It should not be held against Mr Dimitrov for invoking that, for seeking, once he got funding from the Attorney‑General, taking up more formal legal proceedings.

Just some other points.  I was going to come back to you with some paragraph numbers.  I think I am in a position to do that now.  In terms of the show cause document, paragraph 15.2, your Honour, and paragraph 17 ‑ that would be the one probably most directly responding to your Honour’s question.  The last sentence in 17 says:

Accordingly, a lead plaintiff has no power to settle any individual claims ‑

The court would be acting in excess of jurisdiction by affirming it.  It is also in the more recent submissions, at paragraph 62.1.3.  They are the 10 November ones, your Honour.

HIS HONOUR:   Yes, thank you.

MR DUBLER:   Then also it has been said the construction issue could provide all relief and that that should be done first.  Apart from the Kable (2) issue, the construction issue does get a lot of its force from the proposition that the deed should be construed in a certain way, because otherwise it would be beyond power.  That submission really, in the state of uncertainty of the law, runs up against the Victorian Court of Appeal decisions which are against it.  So that would seem to suggest that it is destined for the High Court as well, because the construction issue really needs to rely upon the premise that the deed would go beyond power if it was otherwise interpreted.  Again, reinforcing that, peculiarly, there is a need for this Court, we would say with respect, to deal with all matters of importance to many litigants but also to this litigant in a way that can deal with all issues.  That is all we wish to put, your Honour.

HIS HONOUR:   Mr Dubler, just before you conclude, can I just ask you:  if your submission about lack of authority to enter into the deed of settlement is correct then none of the constitutional issues arise, do they?  If there is no authority to enter into the deed of settlement, at least in relation to the non‑common issues that relate to your client, then order 2 of Justice Croft does not purport to give any authority that does not exist.  Order 2 is just expressed in terms of having the authority of the group members, as that term is defined in the group proceedings, to enter into and give effect to the deed of settlement.

MR DUBLER:   That might be a proposition we would like to embrace, but I think it is put against us, and it was the reasoning in the Victorian Court of Appeal in Pekell’s Case, that the effect of order 2 is by judicial order of a superior court giving the lead plaintiff the power that it otherwise

would not have.  But for order 2, the fact that there is a deed that goes beyond power means that it would not trouble the group member.

HIS HONOUR:   I see.

MR DUBLER:   But it is in combination with the order that presents the problem and that is why we say it is classically a Kable (2) issue in the sense that, unless that order is attacked, there is a potential problem.

HIS HONOUR:   Yes.  Thank you, Mr Dubler.  Mr Archibald, anything in reply?

MR ARCHIBALD:   Just a few matters, your Honour.  Hibble is a very different case.  It is a case where the Tribunal, the special panel, in respect of industrial awards was not properly constituted, so there was really no award at all, but the vice in any event lay in the continued enforcement of the industrial award, hence the focus on prohibition.  It will not always be the case that prohibition only follows upon a quashing of an award or order.  In cases where it will, in Hibble there was no need for it, but in this case, for reasons we urged in‑chief, we submit that would be the position.

As to the authority point, the extent to which it arises or is raised here, that could and should have been put before Justice Croft and could and should be put on any appeal that may have been brought, could be brought from Justice Croft’s order. Our friend made submissions about the proper construction of section 33ZC(4) and (5). Were those submissions to be correct, all that would follow, in our submission, is that section 33ZC makes no provision ‑ ‑ ‑

HIS HONOUR:   It would leave a gap that the common law would have to fill.

MR ARCHIBALD:   There would just be no special procedure and you are just back to what I will call standard plain vanilla section 17; that is what you would be left with.

Our friend made submissions about delay and the role of the bank in respect of delay.  The history is covered by Mr Flamer‑Smith’s affidavit, paragraphs 9 to 20.  Justice Croft’s order was made on 11 December 2014.  He sought that no enforcement steps be taken until 2 February 2015.  I am giving a narrative of what is in the affidavit.  Before that period had expired, on 5 January 2015, Mr Dimitrov engaged SR Group, a commercial firm, to assist him in negotiation for terms of repayment.  Those negotiations continued until June.

In June, SR Group requested that Mr Dimitrov’s loans be reviewed on the ground of financial difficulty.  That activated the code of banking practice that you, as a bank, do not sue a customer while that question is being looked at.  The topic was considered.  A view was reached on 10 September by the bank that no arrangement could be reached.  Five days later it issued a letter of demand to Mr Dimitrov.  The following day the SR Group was notified by the bank of that situation and within six days the SR Group lodged the FOS complaint which, again, interrupted the bank’s endeavours to issue proceedings against him.

The FOS inquiry concluded on 15 February 2016, and in March the bank commenced the formal debt recovery proceedings in the District Court.  There were other FOS procedures which then delayed the progress of the litigation but, in our submission, on no view (a) had the bank delayed or (b) could Mr Dimitrov have been under any mistake that the bank was embarking upon a prompt course to pursue the matter of recovery of debt in court.  If your Honour pleases.

HIS HONOUR:   Yes, Mr Rich.

MR RICH:   Might we briefly give your Honour a reference to page 139 of the exhibit to Mr Dimitrov’s affidavit ‑ it is part of exhibit PMD‑5 ‑ where your Honour will find the notice of the proposed settlement.  An issue was raised – it was put in terms of authority ‑ but we draw that to your Honour’s attention because it is very stark from that document that Mr Dimitrov, and others, were put on notice that this settlement would bind him in relevant respects; that is, including in relation to what are referred to as the individual claims.  And, as we have said to your Honour, he then appeared via his solicitor and had an opportunity to make the point, if he wished to make it, that there was no power or authority to enter into a settlement having this effect; he did not make that point.

Now, the case of Timbercorp we say is a fundamentally different situation.  What happened in Timbercorp is really an unsurprising conclusion in the sense that there is a judgment and the High Court finds that the parties are only bound insofar as issues were pleaded, or ought to have been pleaded, in an Anshun sense ‑ nothing unsurprising about that ‑ and that the lead plaintiffs were privies only in respect of those issues.

Here, we have a party, group members, told there is going to be a settlement approval hearing, this is the settlement, if you want to turn up and oppose it or not, this is the order that is sought.  He turns up, an order is made.  Section 33ZB of the Act binds Mr Dimitrov as a group member to any order which is made in the proceedings.  His situation, therefore, is fundamentally different to that of a group member in the Timbercorp Case where there is a final judgment on the merits.

HIS HONOUR:   This is effectively the reasoning in Pekell.

MR ARCHIBALD:   Yes, I think, with respect, that is right.  But we wish to draw your Honour’s attention to what is in the evidence about what he knew was happening and the opportunity which was plainly available to him.

Now, as for the application to amend, which we must confess to have – certainly, from my part – that is, to bring the construction issues into this Court.  If that were to ever happen, of course, it raises another issue which we have identified in the written submissions about the absence of parties.  If this Court were being asked to construe a contract binding on all the group members then that would be another reason why there is a problem of parties in this litigation.  If your Honour pleases.

HIS HONOUR:   Thank you.  Mr Marskell, is there anything you wish to add?

MR MARSKELL:   No, your Honour.

HIS HONOUR:   Yes, thank you.  I am particularly conscious now of the need to provide rapid resolution of these issues, given the number of cases that await this proceeding.  I will reserve my decision but I expect that I will deliver written reasons within the next one to two weeks.  The Court will adjourn.

AT 12.43 PM THE MATTER WAS ADJOURNED