Impiombato v BHP Group Limited - [2025] FCAFC 9

FEDERAL COURT OF AUSTRALIA
Impiombato v BHP Group Limited [2025] FCAFC 9

Appeal from:
Impiombato v BHP Group Limited (No 4) [2023] FCA 1354

Impiombato v BHP Group Limited (No 5) [2024] FCA 591

File numbers: VID 989 of 2023
VID 553 of 2024

Judgment of: BEACH, LEE AND O'BRYAN JJ

Date of judgment: 12 February 2025

Catchwords:
REPRESENTATIVE PROCEEDINGS – appeal from interlocutory decision regarding interpretation of group member definition – relevant principles concerning the interpretation of a pleading – no error in primary judge’s conclusion demonstrated – appeal dismissed

REPRESENTATIVE PROCEEDINGS – appeal from interlocutory order that amendments to the originating application and statement of claim, including amendments to the group member definition, take effect from the commencement of the proceeding – application of principles stated by the Full Court in Ethicon Sàrl v Gill (2018) 264 FCR 394 – primary judge’s discretionary decision based on material errors of fact – appeal allowed and discretion re-exercised – amendment to the group member definition should take effect from the date of the amendments –amendments to the claims of existing group members should take effect from the commencement of the proceeding

Legislation:
Australian Securities and Investments Commission Act 2001 (Cth)

Corporations Act 2010 (Cth) s 1322

Evidence Act 1995 (Cth) ss 27, 75, 167

Federal Court of Australia Act 1976 (Cth) ss 24, 33H, 33K, 33ZE, 33ZF, 59(2B),

Federal Court Rules 2011 (Cth) rr 8.03, 8.05, 8.21, 16.53

Cases cited:
Allesch v Maunz (2000) 203 CLR 172
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345
Austructures Pty Ltd v Makin [2014] VSC 544
Bauer Consumer Media Ltd v Evergreen Television Pty Ltd [2019] FCAFC 71
BHP Group Ltd v Impiombato (2022) 276 CLR 611
Binqld Finances Pty Ltd (in liq) v Binetter [2024] FCA 361
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424
Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Bright v Femcare Ltd [2002] FCAFC 243
Brown v Jammal [1995] NSWCA 62
Caason Investments Pty Ltd v Cao (2015) 236 FCR 322
Dare v Pulham (1982) 148 CLR 658
Dyczynski v Gibson (2020) 280 FCR 583
Ethicon Sàrl v Gill (2018) 264 FCR 394
Fox v Percy (2003) 214 CLR 118
Gould v Mount Oxide Mines Ltd (1916) 22 CLR 490
House v The King (1936) 55 CLR 499
Hua Wang Bank Berhad v Federal Commissioner of Taxation (No 15) (2013) 217 FCR 26
Impiombato v BHP Group Limited (No 4) [2023] FCA 1354
Impiombato v BHP Group Limited (No 5) [2024] FCA 591
Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (2008) 73 NSWLR 653
J Wisbey & Associates Pty Ltd v UBS AG [2021] FCA 36
Karl Suleman Enterprizes Pty Ltd (in liquidation) v Pham [2013] NSWSC 110
Keynes v Rural Directions Pty Ltd (No 4) [2011] FCA 304
Kuligowski v Metrobus (2004) 220 CLR 363
Lantrak Holdings Pty Ltd v Yammine [2023] FCAFC 156 Lee v Lee (2019) 266 CLR 129
Newtronics Pty Ltd v Gjergja [2008] VSCA 117
Nikolay Malakhov Shipping Co Ltd v SEAS Sapfor Ltd (1998) 44 NSWLR 371
Norbis v Norbis (1986) 161 CLR 513
Northern Territory v Sangare (2019) 265 CLR 164
Petrusevski v Bulldogs Rugby League Club Ltd [2003] FCA 61
Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362
Professional Administration Service Centres Pty Ltd v Commissioner of Taxation [2012] FCAFC 180
Provide Nominees Pty Ltd v Australian Securities and Investments Commission (2024) 301 FCR 569
Revian v Dasford Holdings Pty Ltd [2001] FCA 777
Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22
Sent v Jet Corporation of Australia Pty Ltd (1986) 160 CLR 540
Singtel Optus Pty Ltd v Robertson [2024] FCAFC 58
Wang v Hur [2024] QCA 126
Warren v Coombes (1979) 142 CLR 531
Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543
Wong v Silkfield Pty Ltd (1999) 199 CLR 255
John Levingston, The Law of Affidavits (Federation Press, 2013)
Justice Alan Robertson, ‘Affidavit Evidence’ [2014] Federal Judicial Scholarship Articles

Division: General Division

Registry: Victoria

National Practice Area: Commercial and Corporations

Sub-area: Corporations and Corporate Insolvency

Number of paragraphs: 393

Date of hearing: 8 November 2024

Counsel for the appellants in VID 989 of 2023 and the respondents in VID 553 of 2024: P W Collinson KC with E L Olivier

Solicitors for the appellants in VID 989 of 2023 and the respondents in VID 553 of 2024: Phi Finney McDonald and Maurice Blackburn Lawyers

Counsel for the appellant in VID 553 of 2024 and the respondent in VID 989 of 2023: W Harris KC with K Loxley, B Cameron and J Moir

Solicitors for the appellant in VID 553 of 2024 and the respondent in VID 989 of 2023: Herbert Smith Freehills

Table of Corrections

13 February 2025
Paragraph 109 has been deleted and replaced with:

“The amended group definition in para 3 of the statement of claim is as follows (with the amendments marked):

The Joint Applicants and the persons they represent (the Group Members) are all persons who or which:

(a)        during the period from 8 August 2012 to the close of trade on 9 November 2015 inclusive (Relevant Period) entered into a contract (whether themselves or by an agent or trustee) to acquire an interest in fully paid up ordinary shares in:

(i)         the Respondent, formerly BHP Billiton Limited (BHP Ltd)~~, on the Australian Securities Exchange (ASX), a financial market operated by the Australian Exchange ASX Limited (the BHP ASX Shares)~~; and/or

(ii)        BHP Group Plc, formerly BHP Billiton Plc (BHP Plc), a company registered in England and Wales~~, on the London Stock Exchange (LSE), a financial market operated by the London Stock Exchange Group Plc (the BHP LSE Shares); and/or~~

~~(iii)       BHP Plc on the Johannesburg Stock Exchange (JSE), a financial market operated by the Johannesburg Stock Exchange Limited (the BHP JSE Shares);~~

…

(b)        …

(c)        are alleged to have suffered loss or damage by, or which resulted from, the conduct of BHP Ltd as pleaded in this statement of claim.”

ORDERS

VID 989 of 2023

BETWEEN:
VINCE IMPIOMBATO

First Appellant

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

Second Appellant

AND:
BHP GROUP LIMITED

Respondent

ORDER MADE BY:

BEACH, LEE AND O'BRYAN JJ

DATE OF ORDER:

12 FEBRUARY 2025

THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellants pay the respondent’s costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

VID 553 of 2024

BETWEEN:
BHP GROUP LIMITED

Appellant

AND:
VINCE IMPIOMBATO

First Respondent

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

Second Respondent

ORDER MADE BY:

BEACH, LEE AND O'BRYAN JJ

DATE OF ORDER:

12 FEBRUARY 2025

THE COURT ORDERS THAT:
1.The appeal be allowed.
2.Order 2 of the orders of the Court in proceeding VID 549 of 2018 made on 6 June 2024 be set aside.
3.The amendments made to the amended consolidated originating application dated 19 June 2024 take effect on and from 5 December 2023.
4.The amendments made to the further amended consolidated statement of claim dated 19 June 2024 take effect on and from the following dates:
(a)5 December 2023 in respect of the description of group members in paragraph 3;
(b)31 May 2018 in respect of all other amendments.

5.By 26 February 2025, each party file a written submission (of no more than three pages) on the question of the costs of the determination of the interlocutory application by the primary judge and of the appeal. The Court will determine the question of costs on the papers.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BEACH AND O’BRYAN JJ:
A. INTRODUCTION

A representative proceeding has been brought against BHP Group Limited alleging that it contravened:
(a)rule 3.1 of the ASX Listing Rules and s 674(2) of the Corporations Act 2010 (Cth) (Corporations Act); and
(b)the prohibitions against misleading and deceptive conduct in s 1041H(1) of the Corporations Act and s 12DA(1) of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act).
BHP Group Limited and BHP Group Plc are parties to an agreement entered into in 2001 which implemented a dual listed company structure under which the two companies operate as if they are a single unified economic entity. It is convenient to refer to BHP Group Limited as “BHP Ltd” and BHP Group Plc as “BHP Plc”, and to refer to the notional single unified economic entity comprising BHP Ltd and BHP Plc as “BHP”. BHP Ltd is listed on the Australian Securities Exchange (ASX) and its ordinary shares are quoted on that exchange. BHP Plc is listed on the London Stock Exchange (LSE) and the Johannesburg Stock Exchange (JSE) and its ordinary shares are quoted on those exchanges.
The allegations made in the representative proceeding arise from the collapse of the Fundão Dam in Brazil at around 3.30 pm on 5 November 2015 (Brazil time). The Fundão Dam supported an iron ore mine in the state of Minas Gerais, Brazil, in which BHP held a substantial indirect interest. The collapse of the Fundão Dam resulted in the release of a significant volume of tailings causing loss of life and damage to property in the vicinity of the dam, and also resulted in adverse commercial consequences for BHP including exposure to remediation costs and disruption to iron ore production.
The proceeding has been burdened by numerous interlocutory disputes. Although the proceeding was commenced in 2018, it is listed for trial in 2025. The two appeals before this Court are the latest in the series of interlocutory disputes. The appeals arise from two interlocutory judgments, each of which concerns the description of group members. It is common to refer to the description of group members contained in an originating application or statement of claim as the “group member definition” or “group definition”. In these reasons, the expressions “description of group members” and “group definition” are used interchangeably.
On 3 November 2023, Moshinsky J made orders refusing to approve the form of opt-out notices proposed by the applicants, and published reasons in Impiombato v BHP Group Limited (No 4) [2023] FCA 1354 (Impiombato No 4). The issue in dispute between the parties, which was resolved by Moshinsky J in Impiombato No 4, concerned the description of the group members contained in the draft opt-out notice proposed by the applicants. That dispute raised the question of the meaning of the description of group members which was set out in the originating application and the statement of claim. The applicants contended that the description covers persons who, during the period from 8 August 2012 to the close of trade on 9 November 2015 inclusive (relevant period), entered into contracts to acquire ordinary shares in BHP Ltd or BHP Plc on any trading platform or exchange, not limited to the ASX, the LSE or the JSE. In particular, the applicants contended that the description included persons who entered into a contract to acquire ordinary shares in BHP Ltd through a trade on Chi-X Australia (now known as Cboe Australia) (Chi-X). BHP Ltd contended that the description only covers persons who, during the relevant period, entered into contracts to acquire ordinary shares in BHP Ltd or BHP Plc through trading on the ASX, the LSE or the JSE. Moshinsky J concluded that the interpretation advanced by BHP Ltd was correct (Impiombato No 4 at [30]).
On 17 November 2023, Moshinsky J made an order extending until 24 November 2023 the date for filing any application for leave to appeal from the judgment in Impiombato No 4. On 24 November 2023, the applicants filed an application for leave to appeal (which has been given the file number VID 989 of 2023). The applicants also sought the adjournment of the hearing of the application for leave to appeal pending the determination of an application to amend the originating application and statement of claim to vary the group definition.
On 5 December 2023, the applicants filed the foreshadowed application to amend the originating application and statement of claim. The purpose of the proposed amendments was to bring the group definition into line with the definition propounded by the applicants, and to make certain consequential amendments. Controversially, the applicants also sought an order that the amendments take effect on and from the commencement of the proceeding, being 31 May 2018. That order would overcome the operation of applicable limitation periods under the Corporations Act and the ASIC Act that would otherwise be a bar to financial relief.
The application for leave to amend was heard by Murphy J on 25 March 2024. BHP Ltd did not oppose the grant of leave to amend, but opposed the making of an order that the amendments take effect on and from 31 May 2018. On 6 June 2024, Murphy J granted the applicants leave to amend the originating application and statement of claim, and also ordered that the amendments take effect on and from 31 May 2018, with reasons published in Impiombato v BHP Group Limited (No 5) [2024] FCA 591 (Impiombato No 5).
On 19 June 2024, BHP Ltd applied for leave to appeal from the judgment in Impiombato No 5 (which application has been given the file number VID 553 of 2024).
On 30 July 2024, orders were made pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) granting the applicants leave to appeal from the judgment in Impiombato No 4 and granting BHP Ltd leave to appeal from the judgment in Impiombato No 5.
The principles concerning an appeal under s 24 of the FCA Act are well known. In short, an appeal is by way of rehearing, but it is a jurisdiction for the correction of error: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [21]-[22] (Allsop J). Where the decision appealed from involves the exercise of discretion by the primary judge, the Court will not interfere unless an error of the kind referred to in House v The King (1936) 55 CLR 499 (House v The King) at 504–5 is shown to have been made in the exercise of the discretion.
While the decisions in Impiombato No 4 and Impiombato No 5 are interlocutory, they are not merely decisions on matters of practice and procedure in respect of which appellate interference is kept on a “tight rein” (as observed by Lindgren J in Bright v Femcare Ltd [2002] FCAFC 243; 195 ALR 574 at [2]). The decision in Impiombato No 4 concerns the identification of the persons on whose behalf the proceeding has been brought. The decision in Impiombato No 5 concerns the date from which the amendments to the group definition take effect, which affects the operation of applicable limitation periods. Both decisions have a significant effect on the rights and interests of the parties to the proceeding and group members.
The applicants’ appeal from the judgment in Impiombato No 4 raises a narrow issue: whether Moshinsky J’s interpretation of the group definition in the originating application and statement of claim is correct. While the supplementary notice of appeal states six grounds of appeal, the grounds largely record the arguments advanced by the applicants for their preferred interpretation of the group definition. For the reasons given below, Moshinsky J’s interpretation of the group definition in the originating application and statement of claim is correct.
BHP Ltd’s appeal from the judgment in Impiombato No 5 also raises a relatively narrow issue: whether there was error in the discretionary judgment of Murphy J that the amendments to the originating application and statement of claim should take effect from the commencement of the proceeding. Respectfully, for the reasons given below, his Honour’s discretionary decision is based on material errors of fact and should be set aside. In the course of argument on the appeal, it became apparent that the amendments have two effects which should be separately considered. The first effect is to broaden the group definition to include persons who, prior to the amendment, would not have been group members. They are persons who acquired ordinary shares in BHP Ltd or BHP Plc during the relevant period only on a trading platform or exchange other than the ASX, LSE or JSE (such as Chi-X). Applying the principles stated by the Full Court in Ethicon Sàrl v Gill (2018) 264 FCR 394 (Ethicon Sàrl), that amendment to the group definition should take effect from the date of the amendments. The second effect is to broaden the claims made on behalf of existing group members to include claims in respect of the acquisition of ordinary shares in BHP Ltd or BHP Plc during the relevant period on trading platforms other than the ASX, LSE or JSE (such as Chi-X). Applying established principles, that amendment should take effect from the commencement of the proceeding as the effect of the amendment is to add a claim that arises out of substantially similar facts to the existing claims made in the proceeding.
B. APPEAL FROM IMPIOMBATO NO 4 - GROUP DEFINITION
The group definition
In this proceeding, and for the purposes of s 33H of the FCA Act, the applicants described the group members to whom the proceeding relates in both the originating application (being the consolidated originating application dated 16 August 2019) and the statement of claim (being the amended consolidated statement of claim dated 7 September 2020).
The originating application contained the following description:
The Group Members to whom this proceeding relates are all persons who or which:
1. during the Relevant Period entered into a contract (whether themselves or by an agent or trustee) to acquire an interest in:
(a)       BHP ASX Shares; and/or
(b)       BHP LSE Shares; and/or
(c)       BHP JSE Shares;
2. are not within the classes of excluded persons referred to in paragraph 3(b) of the consolidated statement of claim; and
3. are alleged to have suffered loss or damage by, or which resulted from, the conduct of BHP Ltd as pleaded in the consolidated statement of claim.
The originating application also contained the following notation:
NOTE: Capitalised terms have the same meaning as in the consolidated statement of claim unless otherwise defined herein.
None of the capitalised terms “Relevant Period”, “BHP ASX Shares”, BHP LSE Shares” or “BHP JSE Shares” were defined in the originating application. Accordingly, the definitions are to be found in the statement of claim.
The statement of claim did not merely define the foregoing capitalised terms. The statement of claim contained a stand-alone description of group members as follows:
The Joint Applicants and the persons they represent (the Group Members) are all persons who or which:
(a) during the period from 8 August 2012 to the close of trade on 9 November 2015 inclusive (Relevant Period) entered into a contract (whether themselves or by an agent or trustee) to acquire an interest in fully paid up ordinary shares in:
(i) the Respondent, formerly BHP Billiton Limited (BHP Ltd), on the Australian Securities Exchange (ASX), a financial market operated by ASX Limited (the BHP ASX Shares);
(ii) BHP Group Plc, formerly BHP Billiton Plc (BHP Plc), a company registered in England and Wales, on the London Stock Exchange (LSE), a financial market operated by the London Stock Exchange Group Plc (the BHP LSE Shares); and/or
(iii) BHP Plc on the Johannesburg Stock Exchange (JSE), a financial market operated by the Johannesburg Stock Exchange Limited (the BHP JSE Shares);
(b) were not during any part of the Relevant Period, and are not, any of the following:
(i) a director or officer or a close associate (as defined by s 9 of the Corporations Act) of BHP Ltd;
(ii) a related party (as defined by s 228 of the Corporations Act) of BHP Ltd;
(iii) a related body corporate (as defined by s 50 of the Corporations Act) of BHP Ltd;
(iv) an associated entity (as defined by s 50AAA of the Corporations Act) of BHP Ltd;
(v) a Justice, Registrar, District Registrar or Deputy District Registrar of the Federal Court of Australia or the High Court of Australia; or
(vi) an officer or employee of Maurice Blackburn Lawyers or Phi Finney McDonald, or a legal representative engaged by Maurice Blackburn Lawyers or Phi Finney McDonald in this proceeding; and
(c) are alleged to have suffered loss or damage by, or which resulted from, the conduct of BHP Ltd as pleaded in this statement of claim.
Reasons of the primary judge

The primary judge described the issue in dispute between the parties as follows (at [4]):
The issue of interpretation between the parties is whether the group member definition covers persons who, during the Relevant Period, entered into contracts to acquire shares in the respondent (BHP Ltd) or BHP Group Plc (formerly BHP Billiton Plc) (BHP Plc) on trading platforms other than the ASX, the LSE or the JSE. For example, is a person who entered into a contract to acquire shares in BHP Ltd through a trade on Chi-X Australia (now known as Cboe Australia) (Chi-X) within the group member definition? BHP Ltd contends that such persons are not within the group member definition; the applicants contend that such persons are within the group member definition.
His Honour recorded the evidence that was adduced by the parties on the application. The applicant read two affidavits of Andrew Watson dated 15 and 27 October 2023. Mr Watson was, at that time, a principal of Maurice Blackburn Lawyers, one of the two firms of solicitors representing the applicants. On 13 November 2023, Mr Watson was appointed as a judge of the Supreme Court of Victoria. In these reasons, it is appropriate to refer to Mr Watson by his title at the time he swore his affidavit, rather than by reference to his current title of Justice Watson. No disrespect is intended by doing so.
BHP Ltd read two affidavits of Christine Tran dated 12 and 19 October 2023. Ms Tran is a partner of Herbert Smith Freehills, the solicitors for BHP Ltd.
Although his Honour concluded that the interpretation of the group definition should be approached objectively having regard to both the text and the context of the definition (at [22] and [25]), his Honour also made factual findings based on the evidence adduced by the parties. The factual findings concerned a range of matters including BHP’s dual listed company structure, the listing of the ordinary shares in BHP Ltd on the ASX and the ordinary shares in BHP Plc on the LSE and the JSE, the ability of shareholders to trade those shares on those exchanges and on other exchanges such as Chi-X, and the manner in which shares traded on Chi-X were cleared and settled. The parties did not object to his Honour’s reliance on that evidence on the issue of interpretation, and did not challenge that reliance on this appeal. The relevance of such evidence in this context is discussed further below.
Based on the affidavits of Ms Tran, his Honour found (at [10] and [11]) that, during the relevant period:
(a)BHP operated under a dual listed company structure with two parent companies, BHP Ltd and BHP Plc.
(b)BHP Ltd was incorporated in Australia and BHP Plc was incorporated in the UK.
(c)BHP Ltd had a primary listing on the ASX in Australia (it was admitted to the official list on the ASX) and its ordinary shares were admitted for quotation and trading on the ASX, and on other exchanges.
(d)BHP Plc had a premium listing on the UK Listing Authority’s Official List and its ordinary shares were admitted to trading on the LSE in the United Kingdom, and a secondary listing on the JSE in South Africa, and its ordinary shares were available for trading on the LSE and JSE respectively, and on other exchanges.
(e)Ordinary shares in BHP Ltd were maintained on a share register that records the identity of the registered shareholders and buy/sell trading activities of those shareholders. The shares could be and were traded on the ASX, being the primary trading platform or exchange, and could be and were traded on other trading platforms or exchanges, sometimes referred to as secondary trading platforms, such as the exchange operated by Cboe Australia Pty Ltd (formerly Chi-X Australia).
(f)Ordinary shares in BHP Plc were maintained on a share register (separate from the share register of BHP Ltd) that records the identity of the registered shareholders and buy/sell trading activities of those shareholders. The shares could be and were traded on the LSE, being the primary trading platform or exchange, and could be and were traded on the JSE, being the secondary trading platform or exchange, and could be and were traded on other trading platforms or exchanges, such as the exchanges operated by BATS Chi-X Europe.
(g)There was also a separate (secondary) register for trades in BHP Plc that occurred on the JSE, and those trades were reflected on the (South African) share register of BHP Plc.
(h)Trades in ordinary shares in BHP Ltd and BHP Plc were reflected on the respective share registers, but (other than as set out in para (g) above) the share registers do not record the platform upon which the trades occurred.
Based on the affidavits of Mr Watson, his Honour found (at [13] and [14]) that, during the relevant period:
(a)Chi-X was an alternative trading platform to the ASX for some shares in ASX-listed entities as well as some other financial products. Shares purchased through Chi-X could be sold on the ASX and vice versa, provided that the stock was available on both platforms. Unlike the ASX, Chi-X did not maintain an official list to which corporations could be or were admitted. Rather, Chi-X operated an alternate facility through which Australian securities could be and were traded. No other platform offered this facility during the relevant period. Ordinary shares in BHP Ltd could be, and were, traded on the Chi-X trading platform. However, BHP Ltd was not “listed” on Chi-X, in the terminology of Australian corporations law.
(b)Most online brokers enabled investors to trade Australian securities on Chi-X, including CommSec, NABTrade, Stake, Selfwealth, CMC Markets and Superhero. Generally, when executing a trade through these brokers, an investor would not specify whether the trade should be executed on Chi-X or the ASX. Rather, that was left to the broker’s discretion as informed by their duty to comply with the best execution obligations set out in the ASIC Market Integrity Rules.
(c)Clearing and settlement of trades was conducted by the ASX through its Clearing House Electronic Subregister System (CHESS), which combined settlement services with an electronic CHESS subregister that recorded the ownership details of Australian securities. Shareholdings registered on the CHESS subregister were communicated to the issuer sponsored subregister (in the case of BHP Ltd, its subregister is maintained by ComputerShare Pty Ltd) and vice versa, such that both subregisters contained a complete and consistent record of members and their shareholdings.
(d)Clearing and settlement of trades executed on Chi-X were facilitated by the ASX and would settle on an investor’s CHESS HIN (Holder Identification Number) or directly with share registries in an identical fashion to those traded directly on the ASX. The ASX’s Trade Acceptance Service and Settlement Facilitation Service operated to provide an Approved Market Operator (AMO), such as Chi-X, with centralised clearing and settlement services in an identical fashion to trades executed on ASX’s cash equity market trading platform (known as ASX Trade).
(e)Specifically, ASX Clear, a wholly-owned subsidiary of ASX Ltd, provided clearing services to ASX participants. Chi-X, as an AMO, was entitled to have its trades accepted for clearing by ASX Clear on the same basis as those executed on ASX Trade. For both ASX Trade and Chi-X, ASX Clear acted as a central counterparty (CCP) for the trading of shares, warrants and exchange-traded funds. As a CCP, ASX Clear became liable for the completion of all clear transactions on the relevant market. This occurred through a process of novation whereby the original market contract between the trading participant (being a broker authorised on the ASX’s market) representing the buyer and the trading participant representing the seller was discharged and replaced with two new contracts: one between ASX Clear and the clearing participant (being a broker authorised to clear trades through the ASX Clearing House) representing the buyer, and the other between ASX Clear and the clearing participant representing the seller. In this way, ASX Clear became the counterparty assuming the credit risk.
(f)As with trades executed on ASX Trade, trades executed on Chi-X were submitted to ASX Clear for registration. Once accepted by ASX Clear, by way of novation, each cash market trade was replaced with a cash market CCP transaction between each participant and ASX Clear. Where the cash market trade was cleared on both sides by the same clearing participant, there was no need for novation and the participant received notification of the trade. Accordingly, a buyer’s interest in a share acquired through a Chi-X placed trade was indistinguishable from one placed directly through the ASX Trade.
The primary judge observed (at [21]) that, in the present case, both the originating application and the statement of claim contained a group definition, expressed in different terms. His Honour noted that the definition appearing in the originating application was only an abbreviated definition in that it used expressions that were defined in the statement of claim and did not contain the same level of detail as the definition in the statement of claim. The statement of claim, on the other hand, contained a complete definition. In those circumstances, his Honour reasoned that it was necessary to focus on the definition in the statement of claim.
His Honour further observed that the text of the group definition in the statement of claim favoured BHP Ltd’s interpretation (at [23]). Paragraph 3(a)(i) stated that group members are persons who, during the relevant period, “entered into a contract … to acquire an interest in … ordinary shares in … the Respondent … on the Australian Securities Exchange”. His Honour considered that the natural way to read this is that the shares were acquired on the ASX (that is, through trading on the ASX). In other words, the word “on” qualified the acquisition. His Honour considered that it would be strained to read the definition in the manner propounded by the applicants: that the phrase “on the Australian Securities Exchange” only qualified the phrase “ordinary shares in … the Respondent”; in other words, the definition conveyed that group members are persons who entered into a contract (on any platform or in any circumstances) to acquire a particular category type of shares, being ordinary shares in BHP Ltd that were listed on the ASX. His Honour reached the same conclusion with respect to paras 3(a)(ii) and (iii) concerning the shares in BHP Plc listed on the LSE and JSE.
The primary judge next observed that the context of the group definition in the statement of claim includes the rest of the pleading (at [24]). In his Honour’s view, a consideration of the balance of the pleading supported BHP Ltd’s interpretation. In that regard, his Honour noted the following matters: the pleading contained a definition of the BHP ASX Share Market (in para 5(c)), the BHP LSE Share Market (in para 8(a)) and the BHP JSE Share Market (in para 8(b)); those markets then form the basis for a substantial part of the causation pleading in section L of the statement of claim (paras 68-80); and, in broad terms, it is alleged that the alleged contraventions of the Corporations Act and ASIC Act caused the price at which the relevant shares traded on the ASX, the LSE and the JSE to be higher than their true value or the market price that would have prevailed but for the contraventions. His Honour concluded that those allegations appear to be predicated on group members having purchased their shares on one of those exchanges, as no other platforms were pleaded or referred to.
His Honour briefly addressed, and rejected, a number of arguments advanced by the applicants:
(a)First, insofar as the applicants contended that it was always their intention to cover all persons who acquired an interest in shares in BHP Ltd or BHP Plc during the relevant period, his Honour considered that the issue of interpretation must be approached objectively rather than subjectively (at [25]).
(b)Second, insofar as the applicants submitted that it would make no sense to carve out persons who acquired their shares on other trading platforms, his Honour did not accept the submission. His Honour reasoned that, having regard to the causation pleading referred to above, there is a logic to defining the class by reference to the acquisition of the relevant shares on the ASX, the LSE or the JSE (at [26]).
(c)Third, insofar as the applicants submitted that BHP Ltd had conducted the proceeding on the basis that the group definition included persons who acquired shares on other platforms, his Honour was not persuaded that that was correct. His Honour observed that some of the materials filed by BHP Ltd mirrored the group definition in the statement of claim (at [27]).
(d)Fourth, insofar as the applicants contended that their interpretation was to be preferred because it avoided a multiplicity of proceedings, his Honour considered that while that is a general objective of the representative proceeding provisions, it is not of assistance in resolving the issue of interpretation (at [28]).
(e)Fifth, insofar as the applicants relied on the fact that clearing and settlement of trades executed on Chi-X were facilitated by the ASX in the way described above, his Honour did not consider that to assist the applicants’ position. His Honour considered that it would be inapt to describe a trade executed on Chi-X that was cleared and settled by the ASX (or its subsidiaries) as an acquisition “on the ASX”. It is, rather, aptly described as an acquisition “on Chi-X” (at [29]).
In light of the foregoing, the primary judge considered the correct interpretation of the group definition to be that it covered persons who, during the relevant period, entered into a contract to acquire an interest in fully paid-up ordinary shares in BHP Ltd through trading on the ASX and/or fully paid-up ordinary shares in BHP Plc through trading on the LSE or the JSE (at [30]).
Applicants’ grounds of appeal and submissions
The applicants’ supplementary notice of appeal stated the following six grounds of appeal:
1. The primary judge erred in finding that the definition of Group Members in the consolidated originating application dated 16 August 2019 (COA) was only an abbreviated definition so that it was necessary to focus on the definition in the statement of claim (J [21]).
2. The primary judge ought to have found, by reference to s 33H of the Federal Court of Australia Act 1976 (Cth), that the COA (read with any relevant definitions incorporated from the statement of claim) described or otherwise identified the group members to whom the proceeding relates.
3. The primary judge ought to have found that the group members to whom the proceeding relates are the persons described in the COA, being all persons who, during the Relevant Period, entered into a contract to acquire an interest in fully paid-up ordinary shares in BHP Ltd quoted on the ASX and/or BHP Plc quoted or listed on the LSE or the JSE.
4. The primary judge acted on a wrong principle and/or failed to take into account a relevant consideration in preferring a construction of the description of the group members that was contrary to or in tension with the provisions and/or objects of Pt IVA of the Federal Court of Australia Act 1976 (Cth) when an alternative construction consistent with those provisions and/or objects was open on the description (J [28]).
5. The primary judge erred in finding that a trade executed on Chi-X Australia that is cleared and settled by the ASX (or its subsidiaries) is not an acquisition of shares “on the ASX” for the purpose of the description of the group members (J [29]).
6. The primary judge acted on a wrong principle and/or failed to take into account a relevant consideration in determining the definition of the group members without having regard to the intention of the applicants that the proceeding be brought on behalf of all persons who acquired an interest in ordinary shares in BHP Ltd and BHP Plc during the Relevant Period (J [25]) and/or failing to find that the Respondent had at all times acted on the basis that the proceeding had been brought on behalf of all such persons (J [27]).
The applicants’ submissions were not organised by reference to the grounds of appeal. As the respondent did not suggest that the submissions went beyond the grounds of appeal, it is convenient to focus on the applicants’ submissions rather than the grounds of appeal.
At least in one respect, however, the applicants’ submissions contradicted or narrowed the grounds of appeal. By ground 6, the applicants contended that the primary judge acted on a wrong principle and/or failed to take into account a relevant consideration in determining the definition of the group members without having regard to the intention of the applicants. In their written submissions, however, the applicants accepted that the group definition should be interpreted objectively, not subjectively, stating:
The primary judge held, and the appellants do not dispute, that the interpretation of the group definition should be approached objectively.
In their submissions, the applicants contended that the primary judge erred for the following four reasons.
Textual and contextual arguments
The applicant’s first submission was that, on its true construction, the group definition in the originating application and the statement of claim included all persons who acquired shares in BHP Ltd and/or BHP Plc during the relevant period, and was not limited to persons who acquired shares “through trading" on the ASX, LSE or JSE. In support of that submission, the applicants relied on a series of textual and contextual arguments.
The applicants submitted that the primary judge failed to take the group definition in the originating application as the starting point. The applicants argued that the definition in the originating application extended without limitation to all persons who, during the relevant period, “entered into a contract … to acquire an interest in” “BHP ASX Shares”, “BHP LSE Shares” or “BHP JSE Shares”. The use of the preposition “in” made the acquisition of an interest “in” the relevant shares the essential condition of group membership, without imposing any further requirement that those shares be acquired through particular platforms or exchanges.
The applicants accepted that the expressions “BHP ASX Shares”, “BHP LSE Shares” and “BHP JSE Shares” used in the originating application were defined in para 3(a) of the statement of claim. Using “BHP ASX Shares” as the exemplar, the applicants argued that the defined expressions should be understood as referring to “fully paid up ordinary shares in the Respondent … on the Australian Securities Exchange (ASX), a financial market operated by ASX Limited”. The applicants argued that, in this context, the word “on” in para 3(a)(i) of the statement of claim was used in the sense of BHP Ltd being “listed on” the ASX or its ordinary shares being “quoted on” or “listed on” the ASX. During the relevant period, BHP Ltd was listed on the ASX and its ordinary shares were a class of securities admitted for quotation on the ASX. Although shares in BHP Ltd could be traded on secondary platforms – for example, on Chi-X – those trades were still in shares quoted on the ASX in a company listed on the ASX.
The applicants further submitted that there are a number of contextual indications in the statement of claim supporting the conclusion that the expressions “BHP ASX Shares”, “BHP LSE Shares” and “BHP JSE Shares” defined the relevant shares, not the act of acquiring shares. Those indications include paras 5(c)(i), 5(c)(v), 68(b) and 69, each of which referred to BHP ASX Shares traded, acquired or sold on the ASX.
Purposive arguments

The applicants’ second argument was that any ambiguity in the group definition ought to have been resolved by adopting the applicants’ broader construction consistent with the objective purpose of the pleading and the objects and requirements of the representative proceeding regime in Part IVA of the FCA Act.
The applicants submitted that there was no reason to exclude from the “class” persons who acquired shares in BHP Ltd or BHP Plc through trading platforms or exchanges other than the ASX, LSE and JSE. In that regard, the applicants’ placed reliance on the principles of construction applicable to commercial contracts, specifically that the court should give a commercial contract a businesslike interpretation on the assumption “that the parties ... intended to produce a commercial result”. As to the application of principles of contractual construction to the interpretation of pleadings, the applicants placed reliance on a statement of Ipp JA in Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (2008) 73 NSWLR 653 at [380]-[381] and submitted that, in Bauer Consumer Media Ltd v Evergreen Television Pty Ltd [2019] FCAFC 71; 367 ALR 393, Greenwood J (at [73]-[79] and [141]-[142]) and Burley J (at [254]-[267]) adopted an interpretative approach analogous to contractual interpretation. The applicants did not otherwise explain why principles of construction applicable to commercial contracts have any relevance to the interpretation of an originating application and a statement of claim.
The applicants submitted that, if there were any ambiguity in the expression of the group definition, the objects of Pt IVA required the primary judge to adopt whatever reasonably open definition would best avoid a multiplicity of proceedings by covering as many potential group members as possible. In that regard, the applicants referred to the observation of Gordon, Edelman and Steward JJ in BHP Group Ltd v Impiombato (2022) 276 CLR 611 (Impiombato HC) at [74] that the purposes of Pt IVA include “the creation of an efficient and comprehensive mechanism for the determination of similar claims”, and a construction that “would create a risk of a multitude of parallel proceedings or actions” would be “directly contrary” to that purpose.
The applicants further submitted that the interpretation of a group definition should not be approached in an overly technical or pedantic way, but having regard to the function that it is intended to perform under Part IVA, referring to J Wisbey & Associates Pty Ltd v UBS AG [2021] FCA 36 at [13] (Beach J) and Petrusevski v Bulldogs Rugby League Club Ltd [2003] FCA 61 (Petrusevski) at [20]-[22] (Sackville J). For a group definition to comply with the requirements of s 33H, it must be possible for a person to ascertain whether they are a group member. The applicants argued that, in this case, reading a condition into the group definition that the shares had to be acquired through trading on the ASX, LSE or JSE would make it impractical, and potentially impossible, for some persons to determine whether they are group members.
The applicants also criticised the primary judge’s finding (at [27]) that it was not clear (in other words, it was not established) that BHP Ltd had conducted the proceeding on the basis that the group definition included persons who acquired shares on other platforms. Ultimately, the criticism rose no higher than an assertion that BHP Ltd had failed to establish that it had conducted the proceeding on the basis that group members were persons who had acquired shares on the ASX, LSE or JSE.
Primacy of the originating application
The applicants’ third argument was that, if the statement of claim contained a narrower group definition, the primary judge should have given primacy to the definition in the originating application in accordance with s 33H of the FCA Act. The applicants submitted that the primary judge was wrong to conclude that the definition in the originating application was merely an “abbreviated definition” subordinate to the “complete definition” in the statement of claim. The applicants argued that the primacy of the originating application arises from its status as the document by which an applicant commences a Part IVA representative proceeding and moves the court to grant the relief sought. The applicants further submitted that, as s 33H(1) makes plain, a statement of claim is a document filed “in support of” an originating application and therefore subordinate to it.
The applicants referred to the dissenting remarks of Barwick CJ and McTiernan J in Renowden v McMullin (1970) 123 CLR 584 (Renowden) at 596 as authority in support of the primacy of an originating process in marking out the boundaries of an applicant’s claim and resolving any ambiguity in an accompanying statement of claim. The proceeding was commenced by writ which bore a general indorsement alleging breach of contract and breach of duty of care. A statement of claim was subsequently delivered which made no claim based on breach of contract. The plaintiff sought leave to amend the statement of claim to introduce a claim based on breach of contract. In holding that the amendment should be allowed, Barwick CJ and McTiernan J (in dissent) explained (at 595) that “the indorsement marks out the perimeter or range of the area within which the plaintiff may express his claim in a formal fashion in his statement of claim whether as originally filed or as sought to be amended”. The applicants also relied on the further remark of Barwick CJ and McTiernan J (at 596) that:
Possibly, however, where there is ambiguity in the statement of claim the indorsement may serve to throw light upon the meaning of the statement of claim or of expressions in it.
The applicants submitted that, by parity of reasoning, the originating application defines the perimeter or range of the claims that are the subject of the proceeding, and it may serve to throw light upon any ambiguity in the statement of claim, including (as relevant here) with respect to the expression of the group definition.
An acquisition of shares on Chi-X is an acquisition on the ASX
The applicants’ fourth argument is that, even if the primary judge’s interpretation of the group definition is correct, it does not follow that persons who only acquired shares in the BHP entities through trading on secondary trading platforms are excluded from the group definition because such trades still qualify as acquisitions “on the ASX” (or the LSE or JSE). In support of that submission, the applicants relied on the evidence establishing that share trades on Chi-X are cleared and settled through the ASX settlement processes, as described in the factual findings made by the primary judge.
Consideration
Proper approach to interpretation
It is convenient to commence with the proper approach to interpretation. The applicable principles governing the task of interpretating the meaning of written words depend upon the legal context. The principles governing the interpretation of statutes are not the same as the principles governing the interpretation of contracts, although there is overlap.
The present case involves the interpretation of an originating application and a statement of claim. To state the obvious, those documents are neither statutes nor contracts. As explained by the High Court in Dare v Pulham (1982) 148 CLR 658 at 664, the purpose of such documents is to ensure procedural fairness in the conduct of a proceeding: to furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it, and to define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial. In resolving disputes over the meaning of an originating application or a pleading, a court will ordinarily be guided by the objective meaning of the words, taking account of the text and context. However, in determining the issues to be resolved in a proceeding, or whether to allow an amendment to an originating application or a pleading, a court may also take into account the manner in which the parties have conducted the proceedings. As observed by Isaacs and Rich JJ in Gould v Mount Oxide Mines Ltd (1916) 22 CLR 490 at 517-518:
Undoubtedly, as a general rule of fair play, and one resting on the fundamental principle that no man ought to be put to loss without having a proper opportunity of meeting the case against him, pleadings should state with sufficient clearness the case of the party whose averments they are. That is their function. Their function is discharged when the case is presented with reasonable clearness. Any want of clearness can be cured by amendment or particulars. But pleadings are only a means to an end, and if the parties in fighting their legal battles choose to restrict them, or to enlarge them, or to disregard them and meet each other on issues fairly fought out, it is impossible for them to hark back to the pleadings and treat them as governing the area of contest. … There are qualifications, no doubt, and each case must depend for the proper application of the principle upon its own facts.
The specific issue of interpretation in this case concerns the description of group members contained in the originating application and statement of claim. The inclusion of the description is a statutory requirement in Pt IVA of the FCA Act. Section 33H of the FCA Act stipulates as follows:
33H Originating process
(1) An application commencing a representative proceeding, or a document filed in support of such an application, must, in addition to any other matters required to be included:
(a) describe or otherwise identify the group members to whom the proceeding relates; and
(b) specify the nature of the claims made on behalf of the group members and the relief claimed; and
(c) specify the questions of law or fact common to the claims of the group members.
(2) In describing or otherwise identifying group members for the purposes of subsection (1), it is not necessary to name, or specify the number of, the group members.
It can be seen that s 33H requires that the originating application commencing a representative proceeding, or a supporting document, must include three things. First, it must include a description of the group members to whom the proceeding relates (or otherwise identify them). Second, it must specify the nature of the claims made on behalf of the group members and the relief claimed. Third, it must specify the questions of law or fact common to the claims of the group members.
The requirements of s 33H are fundamental to the operation of Part IVA of the FCA Act. First, s 33H operates to ensure that the Court can assess, at the outset, whether the specified pre-conditions for the commencement of a representative proceeding, contained in s 33C, are present: Wong v Silkfield Pty Ltd (1999) 199 CLR 255 at [8]; Ethicon Sàrl at [7]. Second, s 33H operates to identify both the class of group members who are represented in the proceeding, and the claims made on behalf of the group members, so that group members can decide whether they wish to opt out of the proceeding in accordance with the procedures governed by s 33J: Petrusevski at [20]. Third, s 33H operates so as to define the claims of group members for which the running of any limitation period is suspended under s 33ZE.
It follows that certainty as to “class composition”, the description of group members, is fundamental to the operation of Pt IVA, as observed by the Full Court in Ethicon Sàrl at [38]. As has been said on many occasions, it must be possible for persons who may be within the represented group to ascertain from the originating process or pleadings whether they are in fact group members: Petrusevski at [20]; Dyczynski v Gibson (2020) 280 FCR 583 at [170] (Murphy and Colvin JJ) and [335] (Lee J).
Having regard to the important function of the description of group members within a representative proceeding, the interpretation of the description is not solely a matter for the parties to the proceeding. The description of group members in an originating application or pleading is not a matter that the parties can freely disregard and enlarge by their conduct of the proceeding (unlike issues raised in ordinary inter partes litigation). The description of group members affects the interests of persons who are not parties to the litigation. Such persons may act on the assumption that they are within the description, or may act on the assumption that they are not within the description. In so acting, such persons are entitled to expect that the description of group members is as stated in the originating application or pleading. Ordinarily, such persons cannot be expected to be aware of the manner in which the parties to the litigation have conducted the proceeding, nor the subjective beliefs of the parties with respect to the meaning of the group definition.
Those considerations confirm the appropriateness of applying an objective approach to the interpretation of a group definition. It may be that, in some circumstances, the conduct of the parties in the course of a representative proceeding may bear upon the interpretation of a group definition, or be relevant in the exercise of the discretion to allow an amendment. However, a compelling reason would need to be shown to depart from an objective approach. It follows that, in the present case, we respectfully agree with the conclusion of the primary judge (at [25]) that the issue of interpretation should be approached objectively (in other words, looking at the words used in context) rather than subjectively.
The applicants’ arguments based on the “primacy” of the originating application over the statement of claim are unsound. The reasons of Barwick CJ and McTiernan J in Renowden, even in dissent, do not support the contention of primacy. The reasons of the majority in Renowden (expressed in the reasons of Owen J, with whom Kitto and Menzies JJ agreed) were that regard must be had to the statement of claim, not the writ, in determining the claims that the plaintiff wished to litigate (at 608). Under the Federal Court Rules 2011 (Cth) (FC Rules), the two documents serve different functions and have different contents. The filing of an originating application initiates the proceeding. In addition to the names of the parties, the originating application need only state the relief claimed in the proceeding (see r 8.03). The FC Rules contemplate that an originating application will be accompanied by another document which states the claim that is made (see r 8.05). Where the relief sought includes damages, the accompanying document must be a statement of claim (or an alternative accompanying document specified by the Chief Justice in a practice note). Section 33H is neutral as to whether the description of group members is contained in the originating application or the statement of claim, stipulating that the description may be included in an “application commencing a representative proceeding, or a document filed in support of such an application”.
Finally, reference should be made to the evidence adduced on the question of the interpretation of the group definition. It follows from the foregoing that the evidence of the subjective intentions of the applicants and their solicitors is irrelevant to the question of interpretation, as concluded by the primary judge (at [25]). However, in the context of the interpretation of both statutes and contracts, a court will allow evidence to be given as to the technical or customary usage of words and phrases, where such technical or customary usage is relevant to the statutory or contractual context. Ultimately, a court must determine whether the written words and phrases in question have been used in accordance with the asserted technical or customary usage or in accordance with their ordinary meaning. Further, in the context of the interpretation of contracts, a court will allow evidence of surrounding circumstances, known to both parties, if the language of the contract is ambiguous or susceptible of more than one meaning: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 352 (Mason J, as his Honour then was). Broadly, the same considerations can be applied in the interpretation of pleadings. Evidence may be used to inform the court of surrounding circumstances in which the claims arise and, where relevant, of the technical or customary usage of words and phrases contained within a pleading. It is nevertheless appropriate to express some caution with respect to the receipt of evidence on the question of the interpretation of a group definition. As discussed above, persons should be able to ascertain from the originating process or pleading itself whether they are group members. In receiving evidence of technical or customary usage of words and phrases, or of surrounding circumstances, for the purpose of interpreting a group definition, it is appropriate for the court to consider whether a person who might be within the group definition would be expected to have knowledge of the matters that are the subject of the evidence. The more obscure or technical the evidence, the less relevant it will be to the task of interpretation.
In the present case, the parties adduced evidence with respect to the listing and quotation of BHP Ltd and BHP Plc shares on the ASX, LSE and JSE, the ability of shareholders to trade those shares on those exchanges and on other exchanges such as Chi-X, and the manner in which shares traded on Chi-X were cleared and settled. The primary judge made factual findings on the basis of that evidence and took those facts into account in the interpretation of the group definition. Neither party objected to that course, nor challenged the factual findings made.
The originating application and statement of claim
It is necessary to read the group definition in the context of the claims made by the applicants. It is therefore necessary to have regard to the entirety of the originating application and the statement of claim. The procedural history of those documents also forms part of the relevant context in which to interpret the group definition. The procedural history is revealing.
Commencement of VID 649 of 2018
On 31 May 2018, Mr Impiombato filed a representative proceeding against BHP Ltd (then called BHP Billiton Limited), which was given the proceeding number VID 649 of 2018. Mr Impiombato was represented by Phi Finney McDonald and the originating process was prepared by Benjamin Phi of that firm. The statement of claim was prepared by counsel and certified by Mr Phi.
In accordance with s 33H(1)(a) of the FCA Act, the originating application relevantly described the group members to whom the proceeding related as follows:
The group members to whom this proceeding relates are persons who:
(a)During the period from 21 October 2013 until the close of trade on 9 November 2015 inclusive (Relevant Period), acquired an interest in:
(i) fully paid ordinary shares in the Respondent (BHP Limited) on the Australian Securities Exchange (ASX) (the ASX Group Members); and/or
(ii) fully paid ordinary shares in BHP Plc a company registered in England and Wales, on the London Stock Exchange (the LSE Group Members); and/or
(iii) fully paid ordinary shares in BHP Plc on the Johannesburg Stock Exchange (the JSE Group Members);
(b) suffered loss or damage by reason of the conduct of the Respondent alleged in the Statement of Claim;
…
There is no ambiguity in that group definition. The ordinary grammatical meaning is that group members are persons who, during the period stated, acquired an interest in ordinary shares in BHP Ltd on the ASX or acquired ordinary shares in BHP Plc on the LSE or the JSE, and suffered loss by reason of the alleged wrongful conduct of BHP Ltd. The phrases that commence with the word “on” qualify the verb “acquired”.

The group definition in the originating application was largely replicated in para 3 of the statement of claim, which was relevantly as follows:
The Applicant and the persons he represents (Group Members) are persons who:
(a) during the period from 21 October 2013 until the close of trade on 9 November 2015 inclusive (Relevant Period), acquired an interest in:
(i) fully paid ordinary shares in the Respondent (BHP Limited) on the Australian Securities Exchange (ASX), a financial market operated by the Australian Securities Exchange Limited (ASX Limited) (the ASX Group Members); and/or
(ii) fully paid ordinary shares in BHP Billiton Plc (BHP Plc), a company registered in England and Wales, on the London Stock Exchange (LSE), a financial market operated by the London Stock Exchange Group Plc (the LSE Group Members); and/or
(iii) fully paid ordinary shares in BHP Pie on the Johannesburg Stock Exchange (JSE), a financial market operated by the Johannesburg Stock Exchange Limited (the JSE Group Members); and
…
(c) are alleged to have suffered loss and damage by or resulting from the conduct of the Respondent alleged below.
It can be seen that, in the definition in the statement of claim, a description of each exchange was added. For example, the ASX was described as a financial market operated by ASX Limited. The addition did not, however, alter the ordinary meaning of the group definition and there was no disconformity between the definition in the originating application and the statement of claim.
The allegations in the statement of claim concerning causation of loss and damage to group members involved a claim of market based causation. Reduced to essentials, the claim was that: there was a market for BHP Ltd shares on the ASX; the applicant and “ASX Group Members” acquired an interest in BHP Ltd shares in that market; and the market price was distorted by BHP Ltd’s alleged wrongful conduct. Parallel allegations were made in respect of “LSE Group Members” and “JSE Group Members”.
Commencement of VID 1077 of 2018
On 31 August 2018, Klemweb Nominees Pty Ltd (as trustee for the Klemweb Superannuation Fund) (Klemweb) also filed a representative proceeding against BHP Ltd (then called BHP Billiton Limited), which was given the proceeding number VID 1077 of 2018. Klemweb was represented by Maurice Blackburn Lawyers and the originating process was prepared by Brooke Dellavedova of that firm. The statement of claim was prepared by counsel and was certified by Ms Dellavedova.
In accordance with s 33H(1)(a) of the FCA Act, the originating application relevantly described the group members to whom the proceeding related as follows:
The Group Members to whom this proceeding relates are all persons who or which:
1. during the Relevant Period entered into a contract (whether themselves or by an agent or trustee) to acquire an interest in:
(a)       BHP ASX Shares;
(b)       BHP LSE Shares; and/or
(c)       BHP JSE Shares,
2. suffered loss or damage by, or which resulted from, the conduct of BHP Ltd as pleaded in the Statement of Claim; and
…
The originating application also contained the following notation:
NOTE: Capitalised terms have the same meaning as in the Statement of Claim unless otherwise defined herein.
None of the capitalised terms “Relevant Period”, “BHP ASX Shares”, BHP LSE Shares” or “BHP JSE Shares” was defined in the originating application. The definitions were located in the statement of claim.
The Klemweb statement of claim did not merely define the foregoing capitalised terms. The statement of claim contained a stand-alone description of group members which was relevantly as follows:
This proceeding is commenced as a representative proceeding pursuant to Part IVA of the Federal Court of Australia Act 1976 (Cth) by the Applicant on its own behalf and on behalf of all persons who or which:
(a) during the period between 27 August 2014 and 9 November 2015 inclusive (Relevant Period) entered into a contract (whether themselves or by an agent or trustee) to acquire an interest in ordinary shares in:
(i) the Respondent (BHP Ltd) on the Australian Stock Exchange (ASX) (the BHP ASX Shares);
(ii) BHP Billiton plc (BHP plc) on the London Stock Exchange (LSE) (the BHP LSE Shares); and/or
(iii) BHP plc on the Johannesburg Stock Exchange (JSE) (the BHP JSE Shares);
(b) suffered loss or damage by, or which resulted from, the conduct of BHP Ltd as pleaded in this statement of claim; and
…
The foregoing group definition is similar in form to the definitions in the Impiombato originating application and statement of claim. Significantly, the definition refers to persons who, during the relevant period, entered into a contract to acquire an interest in ordinary shares “on” the identified exchanges. The reference to acquiring an interest by contract does not affect the meaning of the definition. The acquisition of shares on an exchange occurs through a trade which requires an offer and acceptance. The factual findings made by the primary judge (at [13(e)]) record that a share trade on the ASX is effected by a “market contract” between the trading participant (being a broker authorised on the ASX’s market) representing the buyer and the trading participant representing the seller. As such, there is no ambiguity in the group definition in the Klemweb statement of claim. The phrases that commence with the word “on” qualify the composite expression “entered into a contract to acquire an interest in” the relevant shares.
Like the Impiombato statement of claim, the allegations in the Klemweb statement of claim concerning causation of loss and damage to group members involved a claim of market based causation. Reduced to essentials, the claim was that: there was a market for BHP Ltd shares on the ASX; the market price was distorted by BHP Ltd’s alleged wrongful conduct; and the applicant and group members who acquired an interest in “BHP ASX Shares” suffered loss and damage as a result. Parallel allegations were made in respect of “BHP LSE Shares” and “BHP JSE Shares”.
Although the description of group members in the Klemweb proceeding has a clear meaning, it was infelicitous in numerous respects. It effectively included two descriptions, one in the originating application and one in the statement of claim. The former was an abbreviated form purporting to use defined terms from the latter. The manner in which terms were defined in the statement of claim, and then applied in the originating application and elsewhere in the statement of claim, created some grammatical difficulties. It is unfortunate that this infelicitous description of group members came to be used in the consolidated proceeding. However, as explained below, the infelicity in language did not create any ambiguity in the group definition.
Consolidation
On 19 July 2019, an order was made for the consolidation of the Impiombato and Klemweb proceedings pursuant to r 30.11 of the FC Rules, with the consolidated proceeding maintaining the number VID 649 of 2018. Each of Mr Impiombato and Klemweb became applicants in the consolidated proceeding. The applicants were given leave to file a consolidated originating application and a consolidated statement of claim, and were also given leave to amend the group definition in proceeding VID 649 of 2018 pursuant to s 33K(1).
A consolidated originating application and consolidated statement of claim were filed on 16 August 2019. The consolidated originating application was in the form considered by the primary judge. The document was prepared by Benjamin Phi of Phi Finney McDonald and Andrew Watson of Maurice Blackburn. The consolidated statement of claim was amended on 7 September 2020. The amended statement of claim was in the form considered by the primary judge. That document was prepared by counsel and certified by Mr Phi and Mr Watson. The amendments were relatively minor and are not relevant to the issue to be determined.
The description of group members in the consolidated originating application was materially in the same (infelicitous) form as in the Klemweb originating application. It has been set out earlier in these reasons, but it is convenient to repeat the relevant parts of the description:
The Group Members to whom this proceeding relates are all persons who or which:
1. during the Relevant Period entered into a contract (whether themselves or by an agent or trustee) to acquire an interest in:
(a)       BHP ASX Shares; and/or
(b)       BHP LSE Shares; and/or
(c)       BHP JSE Shares;
2.        …
3. are alleged to have suffered loss or damage by, or which resulted from, the conduct of BHP Ltd as pleaded in the consolidated statement of claim.
The description of group members in the consolidated statement of claim (as amended) was largely in the same (infelicitous) form as in the Klemweb statement of claim. The principal change was to add the description of each exchange taken from the Impiombato statement of claim. Again, it is convenient to repeat the relevant parts of the description:
The Joint Applicants and the persons they represent (the Group Members) are all persons who or which:
(a) during the period from 8 August 2012 to the close of trade on 9 November 2015 inclusive (Relevant Period) entered into a contract (whether themselves or by an agent or trustee) to acquire an interest in fully paid up ordinary shares in:
(i) the Respondent, formerly BHP Billiton Limited (BHP Ltd), on the Australian Securities Exchange (ASX), a financial market operated by ASX Limited (the BHP ASX Shares);
(ii) BHP Group Plc, formerly BHP Billiton Plc (BHP Plc), a company registered in England and Wales, on the London Stock Exchange (LSE), a financial market operated by the London Stock Exchange Group Plc (the BHP LSE Shares); and/or
(iii) BHP Plc on the Johannesburg Stock Exchange (JSE), a financial market operated by the Johannesburg Stock Exchange Limited (the BHP JSE Shares);
(b) …
(c) are alleged to have suffered loss or damage by, or which resulted from, the conduct of BHP Ltd as pleaded in this statement of claim.
There is no ambiguity in the above description. Focussing on para (a)(i), group members are persons who, during the relevant period, entered into a contract to acquire an interest in fully paid up ordinary shares in BHP Ltd on the ASX and who are alleged to have suffered loss or damage by, or which resulted from, the conduct of BHP Ltd as pleaded in the statement of claim.
The applicants’ principal argument is that the description in the originating application conveys a different meaning and should be given primacy. For the reasons given earlier, the applicants’ argument based on the primacy of the originating application is unsound. Indeed, the usual starting point would be to assume harmony between the originating application and statement of claim, not disharmony, and to interpret the documents in a manner that promotes harmony. The difficulty that arises with the formulation of the group definition in the originating application comes from the use of the defined terms “BHP ASX Shares”, “BHP LSE Shares” and “BHP JSE Shares”. As already noted, however, the difficulty is one of infelicity of language, not ambiguity. It is clear that, in the context of the group definitions, those defined terms are intended to refer to fully paid ordinary shares in BHP Ltd and BHP Plc that are acquired on the relevant exchanges (ASX, LSE and JSE). That interpretation is both faithful to the definition of those terms in the statement of claim and produces harmony between the group definitions in the originating application and the statement of claim.
None of the allegations in the remainder of the statement of claim conflict with that interpretation of both the group definition and the defined terms “BHP ASX Shares”, “BHP LSE Shares” and “BHP JSE Shares”. Further, as found by the primary judge, the allegations concerning causation of loss provide strong support for that interpretation.
The statement of claim has a singular focus on the trading of ordinary shares in BHP Ltd on the ASX and the trading of ordinary shares in BHP plc on the LSE and JSE, and the markets for the trading of those shares on those exchanges. The defined terms “BHP ASX Shares”, “BHP LSE Shares” and “BHP JSE Shares” are used consistently to refer to ordinary shares in BHP Ltd and BHP Plc traded or acquired on those markets.
The applicants’ contextual arguments do no more than highlight possible superfluous language in the statement of claim. For example, the applicants refer to para 5(c) which alleges that BHP Ltd:
at all material times had on issue BHP ASX Shares that were:
(i) trading on the ASX under the designation “BHP”;
(ii) ED securities for the purposes of s 111AE of the Corporations Act;
(iii) quoted ED securities within the meaning of s 111AM of the Corporations Act;
(iv) a financial product within the meaning of s 763A(1)(a) and s 764(1)(a) of the Corporations Act and s 12BAA(1)(a) and s (7)(a) of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act);
(v) able to be acquired and sold by investors and potential investors in BHP ASX Shares on the ASX (BHP ASX Share Market).
It might be said that the allegation in subpara (v) that BHP ASX Shares (defined to mean fully paid ordinary shares in BHP Ltd that are traded on the ASX) were able to be acquired and sold by investors and potential investors on the ASX is otiose. On the other hand, the allegation provides a convenient means to define the expression “BHP ASX Share Market” which is used elsewhere in the statement of claim. Even if there be a degree of superfluity, there is no ambiguity.
Section K of the statement of claim contains allegations concerning BHP’s disclosure of the Fundão Dam collapse and its consequences and the resulting share price impacts. At para 67, the applicants allege that, following the disclosure, the price of BHP ASX Shares, BHP LSE Shares and BHP JSE Shares declined significantly. The particulars refer to the closing prices for BHP Ltd shares quoted on the ASX and the closing prices for BHP Plc shares quoted on the LSE and JSE respectively. The allegation is entirely consistent with the understanding that the defined terms “BHP ASX Shares”, “BHP LSE Shares” and “BHP JSE Shares” refer to ordinary shares in BHP Ltd and BHP Plc traded or acquired on those markets.
Section L of the statement of claim contains allegations concerning causation of loss. At paras 68 and 69, the applicants allege that:
68. During the Relevant Period, the BHP ASX Share Market was a market:
(a) regulated by, inter alia, ss 674(2) and 1041H of the Corporations Act, Rule 3.1 of the Listing Rules and s 12DA of the ASIC Act;
(b) in which the price at which BHP ASX Shares traded on the ASX was, and or was reasonably expected to have been, influenced by the material information concerning BHP that was published on the ASX or that otherwise became publicly available;
(c) in which material information, namely the August 2012 Information, September 2012 Information, Pre-August 2014 Information, Post-August 2014 Information, General Consequential Risks and BHP Consequential Risks, had not been disclosed, which a reasonable person would expect, had it been disclosed, would have had a material adverse effect on the price or value of the BHP ASX Shares; and
(d) in which misleading or deceptive conduct, namely the Representations, had occurred, which a reasonable person would expect to have a material effect on the price or value of BHP ASX Shares.
69. During the Relevant Period:
(a) the Continuous Disclosure Contraventions; and
(b) the Misrepresentations Contraventions,
(collectively, the Contraventions) caused the price at which BHP ASX Shares traded on the ASX to be higher than their true value and/or the market price that would have prevailed but for the Contraventions (or any of them).
Again, those allegations are entirely consistent with the understanding that the defined term “BHP ASX Shares” refers to ordinary shares in BHP Ltd traded or acquired on the ASX. It can be accepted, as identified by the applicants, that the phrase “on the ASX” in paras 68(b) and 69 is unnecessary. The inclusion of the phrase does not, however, suggest any ambiguity in the meaning of the phrase “BHP ASX Shares” when regard is had to the whole of the pleading.
Similar allegations are made in respect of the “BHP LSE Share Market” and the “BHP JSE Share Market”.
Section M of the statement of claim contains allegations that the applicants and group members suffered loss and damage. Para 81 alleges that each of the “Joint Applicants” suffered loss and/or damage in relation to their interests in BHP ASX Shares by and resulting from the alleged contraventions of the Corporations Act and the ASIC Act by BHP Ltd. The particulars of that allegation state that:
The loss suffered by each of the Joint Applicants will be calculated by reference to:
i. the difference between the price at which it acquired its interests in BHP ASX Shares during the Relevant Period and the true value of those interests; or
ii. alternatively, the difference between the price at which it acquired its interests in BHP ASX Shares during the Relevant Period and the market price that would have prevailed had the Contraventions not occurred; or
iii. alternatively, on the days when the traded price of BHP ASX Shares fell as a result of the disclosure of information the subject of the Contraventions, the quantum of that fall; or
iv. alternatively, the difference between the price at which the Joint Applicants each acquired the BHP ASX Shares and whatever is “left in hand”.
Read in the context of the remainder of the statement of claim, the allegation of loss is made by reference to the difference between the prevailing market price for BHP Ltd shares traded on the ASX at the time that each applicant acquired its shares (on that market) and the true value of the shares (or the market price of the shares that would have prevailed had the alleged contraventions not occurred). The allegation is entirely consistent with the understanding that the defined term “BHP ASX Shares” refers to ordinary shares in BHP Ltd traded or acquired on the ASX.
Para 82 alleges that group members who acquired an interest in BHP ASX Shares, BHP LSE Shares and/or BHP JSE Shares during the relevant period have suffered loss and/or damage in relation to their interests in those shares by and resulting from the alleged contraventions. The particulars of that allegation state that those losses will also be calculated in accordance with the particulars to para 81.
Significantly, the statement of claim makes no reference to shares in BHP Ltd or BHP Plc being acquired on any exchange, or in any manner, other than on the ASX, LSE or JSE. As a consequence, the statement of claim includes no allegations concerning the causation of loss in respect of an acquisition of shares in BHP Ltd or BHP Plc being acquired on any exchange, or in any manner, other than on the ASX, LSE or JSE.
In conclusion, the applicants’ argument on the appeal finds no support in the text of the originating application and the statement of claim, including having regard to the procedural history of those documents.
The applicants’ purposive arguments
In the absence of any true ambiguity in the group definition, the applicants’ purposive arguments carry little weight.
The applicants’ submission that there was no reason to exclude from the group definition persons who acquired shares in BHP Ltd or BHP Plc through trading platforms or exchanges other than the ASX, LSE and JSE cannot be accepted for two reasons.
First, the submission assumes that those responsible for preparing the proceeding were aware, at the commencement of the Impiombato and Klemweb proceedings, and then at the commencement of the consolidated proceeding, of the existence of other trading platforms or exchanges on which shares in BHP Ltd and BHP Plc were traded. None of those responsible for preparing the originating application and statement of claim gave evidence to that effect. Neither Mr Phi nor Ms Dellavedova gave evidence. Mr Watson did not address that matter, deposing that at all times “the Applicants’ intention was, and remains, to bring a proceeding on behalf of all persons who acquired an interest in shares in [BHP Ltd] or BHP Plc during the Relevant Period”. The statement provides no evidence as to the awareness of Chi-X or any other facility on which shares in BHP Ltd or BHP Plc were traded. It is revealing that, in his affidavit dated 15 October 2023, Mr Watson deposes that: “In preparation for the hearing on 18 October 2023, I instructed Samuel Habteslassie, an employee solicitor of [Maurice Blackburn], to undertake research relevant to the manner in which shares in ASX-listed entities … may be acquired through the Chi-X platform”. The implication of that statement is that no such research had previously been undertaken by Maurice Blackburn in connection with the proceeding.

One matter identified in the joint reasons is useful to address at the outset of this part of my reasons. Although accepting that this is an appeal against a discretionary decision to which the principles in House v The King apply, his Honour concludes that “a conclusion that the primary judge’s finding was open on the evidence is not dispositive of appeal grounds 2(c) and 3”. This is because the appeal is by way of rehearing in which the Court is required to determine whether the primary judge’s findings of fact involved error, and no witness gave oral testimony and no witness was cross-examined: the evidence was in written form and the Full Court is in as good a position as the primary judge to make findings of fact on the evidence that was adduced at the hearing.
It is beyond dispute that a decision of a primary judge of the type with which we are concerned can only be overturned on appeal in five limited circumstances, being where the primary judge: (1) made an error of legal principle; (2) made a material error of fact; (3) took into account some irrelevant matter; (4) failed to take into account or gave insufficient weight to, some relevant matter; or (5) arrived at a result so unreasonable or unjust as to suggest that one or more four specific categories of error had occurred, even though the specific error did not explicitly appear on the face of the reasoning and must be inferred.
Here we are concerned with one form of specific error: the contention the primary judge made a material error of fact. Perhaps it is a difference in terminology, but as I understand from how the submissions of the applicants were put, it was that if the key finding was “open” to the primary judge, it was open, on the evidence adduced, to be reached without error.
By reference to the principles explained by the High Court in Warren v Coombes (1979) 142 CLR 531 (at 551 per Gibbs CJ, Jacobs and Murphy JJ), Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 (at 180–181 [23] per Gaudron, McHugh, Gummow and Hayne JJ), Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at 127 [26]–[27] per Gleeson CJ, Gummow and Kirby JJ), Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; (2016) 90 ALJR 679 (at 686–687 [43] per French CJ, Bell, Keane, Nettle and Gordon JJ) and Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 (at 148–149 [55] per Bell, Gageler, Nettle and Edelman JJ), and by retaining the language of those authorities, the Queensland Court of Appeal in Wang v Hur [2024] QCA 126 (at [24] per Morrison and Bond JJA and Davis J), recently helpfully summarised the principles governing the circumstances in which an appellate court should be prepared to interfere with the fact finding made by a primary judge as follows:
(a)On an appeal by way of rehearing, it is for the appellant to satisfy the appellate court that the order that is the subject of appeal is the result of some legal, factual or discretionary error.
(b)      On such an appeal, the appellate court is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgment to determine whether it should be so satisfied.
(c)      If the appellate court concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings.
(d)      When determining whether a judge has erred in fact, in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge.
(e)      However, in determining whether the judge has erred in fact, an appellate court is required to exercise restraint when invited to interfere with a primary judge’s findings of fact, at least where those findings are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. Such appellate restraint applies not merely to findings of primary facts but also applies to findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts.
(f)      In such cases, a finding of fact is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. The finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused [his or her] advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’, or which was ‘glaringly improbable’, or which was ‘contrary to compelling inferences’.”
Consistently with these principles, it is not for an appellate court simply to reach a different conclusion because it considers it subjectively appropriate to do so. Mere disagreement does not equate with error even if the relevant finding was based upon documentary material and not dependent upon, or affected by, impressions about the credibility and reliability of witnesses. After all, some findings of fact, made on the balance of probabilities, are based upon evidence aspects of which can sometimes point in different directions (and over which different tribunals of fact, acting rationally, can reach a different conclusion without recognisable error).
The following two points can be made about the evidence before coming to the unchallenged affidavit material.
First, it is correct to say that the pleadings, both before and after consolidation, are focussed on the trading of ordinary shares in BHP Ltd on the ASX and the trading of ordinary shares in BHP Plc on the LSE and JSE, and no allegations concerning the causation of loss in respect of an acquisition of shares in BHP Ltd or BHP Plc being acquired on any exchange, or in any manner, other than by trading on the ASX, LSE or JSE.
Secondly, it is also correct that the pleadings do not reflect an intention by the applicant to advance a claim in respect of shares in BHP Ltd and BHP Plc acquired otherwise than on the ASX, LSE or JSE.
Read fairly, it is evident that the approach taken by the primary judge was to consider whether these objectively verifiable facts were explained in the way the applicants contend they can be explained. The relevant question on appeal is whether we consider the primary judge erred by failing to conclude that the evidence, taken as whole, was unsatisfactory and had insufficient probative value.
The evidence treated as being before the primary judge has been thoroughly and helpfully set out in the joint reasons. I will not repeat that analysis or set out the roles of various “witnesses”, and it is only necessary for me to refer to the highwater mark of the representations contained in the affidavit material.
The first is that of Mr Watson (15 October 2023 (at [18])) as follows:
At all times since the commencement of this proceeding, the Applicants’ intention was, and remains, to bring a proceeding on behalf of all persons who acquired an interest in shares in the Respondent or BHP Plc during the Relevant Period. On the Applicants’ case, all such persons would have suffered loss or damage by, or as a result of, the Respondent’s conduct alleged in the ACSOC. There was and is no reason why the Applicants would exclude from the proceeding persons who acquired shares in the Respondent or BHP Plc through platforms other than the ASX, LSE or JSE. It is my view that the description of the group members in the COA and ACSOC reflects that intention.
At all times, the Applicants have conducted the proceeding on the basis that the group members included all persons who had acquired an interest in shares in the Respondent and BHP Plc during the Relevant Period.
To similar effect was the evidence of Mr Myers (5 December 2023 (at [23], [25], [27], [42], [53]); 29 February 2024 (at [7]–[8])) that:
When commencing this Proceeding and the Klemweb Proceeding, the Applicants’ intention was, and remains, to bring proceedings on behalf of all persons who acquired an interest in shares in BHP Ltd and/or BHP Plc during the Relevant Period, irrespective of the market or platform or means of trade through which those trades occurred.
***
Furthermore, at all times since commencing the proceedings, the Applicants have conducted them on the basis that the group members included all persons who had acquired an interest in fully paid up ordinary shares in BHP Ltd and/or BHP Plc during the Relevant Period. …
***
I understood when the Proceeding was commenced, and at all times since, that the references to the ASX, LSE and JSE in the context of the descriptions of the group members and other parts of the pleadings reflected the dual-listed structure of BHP Ltd and BHP Plc, and referred to shares on the ASX, LSE and JSE in the sense of being listed or quoted on those exchanges. I did not understand the references to the ASX, LSE and JSE to introduce any limitation on, or criterion for, group membership such that a person’s acquisition of shares in BHP Ltd or BHP Plc had to occur through trading on those exchanges.
***
I believe, based on information from Ms Lubomirska and Ronald Koo, now a Principal of MB, that at all times since prior to the commencement of the Klemweb Proceeding, and following consolidation, MB intended to bring the proceedings on behalf of all persons who acquired shares in BHP Ltd and/or BHP Plc during the Relevant Period, irrespective of the platform or other means of trading through which those shares were acquired. I further believe, based on information from Ms Lubomirska and Mr Koo, that at all times they understood that the references to the ASX, LSE and JSE in the context of the descriptions of the group members reflected the dual-listed structure of BHP Ltd and BHP Plc, and not that group membership was restricted to persons who acquired shares on those specific exchanges.
***
To the extent that the Applicants failed to execute their intention… to include all persons who acquired shares in BHP Ltd and BHP Plc in the description of the group members in the originating applications and pleadings filed in the proceedings, that was an inadvertent mistake in the drafting, which the Applicants now seek to correct by their amendment application.
***
I am informed by Mr Impiombato, that it was his intention to bring proceedings on behalf of a group comprising all people who bought shares in BHP Ltd and/or BHP Plc (BHP).
Further, Ms Lubomirska made similar representations as to what was conveyed to her by Mr David Webb (a director of Klemweb) as to communications that occurred between Mr Webb and another solicitor, Ms Dellavedova, prior to the commencement of the Klemweb proceeding in 2018.
Several things can be observed about this material.
First, I have already explained the heterodox way the representations of Mr Watson were placed before the primary judge. But given we must proceed on the basis the material was “in”, I disagree that the practical consequence of the applicants’ decision to place the representations before the Court in the way that they did was that “the evidence contained in those affidavits was not able to be tested by cross-examination”.
Rather, the real practical consequence of the parties proceeding the way they did was that the representations of Mr Watson, which were inadmissible, were placed before the primary judge. As the primary judge correctly concluded, the decision to allow this material to be placed before the Court without challenge was a forensic choice made by BHP Ltd (which was explained by BHP Ltd as reflecting an assessment as to the infirm nature of this and the other testimonial evidence).
Secondly, although all these representations, none of which were the subject of objection or limitation pursuant to s 136 of the Evidence Act, do not directly address the question as to whether the applicants were aware at the time of drafting that shares in BHP Ltd and BHP Plc could be acquired on trading platforms or exchanges other than the ASX, LSE or JSE, or in off-market transactions, they do convey unqualified statements as to the subjective view taken by the applicants as to the terms of the group definition (although that view has been demonstrated to be objectively wrong).
Thirdly, obviously enough, the adduction of hearsay evidence of a representation in an interlocutory application can sometimes occasion unfairness. Leaving aside form issues, any such unfairness arising from the receipt of even admissible hearsay on an interlocutory application, can, of course, be remedied, in an appropriate case, in at least three ways: (1) by discretionary exclusion under Pt 3.11 of the Evidence Act on the basis, for example, that the probative value of the relevant representation is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the respondent (see s 135(a)); (2) by discretionary limitation under Pt 3.11 of the Evidence Act if there is a danger the representation would be unfairly used to prove the truth of the disputed out of court representation (see s 136(a)); or (3) by making a reasonable request under Pt 4.6 of the Evidence Act for the purpose of determining a question that relates to a representation by requesting the claimant to call as a witness the person who made the representation (see s 166(f)).
Of course, in this case, no form objections were made; no applications were made for discretionary exclusion nor limitation; and no request to call the maker of a previous representation was made. As noted above, this was a forensic choice of BHP Ltd.
Fourthly, one can understand a forensic decision being made that evidence adduced in chief is inadequate, however, the fact the evidence was unchallenged cannot be ignored. It is a serious matter to reject the oath of a solicitor, and if evidence is said to be unworthy of acceptance or of no weight because it is said to be self-serving or somehow coloured by the forensic exigencies, such a proposition should have been squarely put as a matter of procedural fairness. The obligation of the primary judge was to have regard to the principle that disputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly had been led and principles governing the onus the standard of proof must faithfully be applied: Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345 (at 412–413 [165]–[167] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
I do not agree the evidence provides no support for the applicants’ contention that Maurice Blackburn intended to advance a claim in respect of shares in BHP Ltd and BHP Plc, however they were acquired.
The primary judge described the evidence as unchallenged (at [140]), and observed, correctly, that as a general proposition, unchallenged evidence ought be accepted by a tribunal of fact unless it is inherently incredible or contradicted by facts otherwise established on the evidence: see Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 (at 370–371 per Gibbs J, with whom Stephen and Murphy JJ agreed).
Although a court is not obliged to treat the evidence of a witness as determinative merely because the witness is not cross-examined, and BHP Ltd’s decision not to cross-examine did not increase the probative value of the evidence, the evidence still needs to be considered on its terms.
The uncontradicted evidence is that those acting for the applicants made a mistake in the drafting of the original pleadings and the consolidated pleading by not including a claim in respect of the acquisition of shares in BHP Ltd and BHP Plc irrespective as to how the acquisition occurred. Hence, they were unnecessarily precise because they did not understand, at the time, that potential group members acquired shares in BHP Ltd or BHP Plc through trading platforms or exchanges other than the ASX, LSE or JSE. As the joint reasons note, tellingly, no evidence was adduced in chief that the applicants and/or their solicitors were aware that shares in BHP Ltd and BHP Plc could be acquired on trading platforms and exchanges other than the ASX, LSE and JSE.
In the end, the relevant factual conclusion of the primary judge (at [151]) was that, at all material times, the intention of the applicants and their solicitors was to bring the proceeding on behalf of all persons who acquired an interest in BHP Ltd and BHP Plc during the relevant period, irrespective of the trading platform upon which that occurred. This must be understood as a finding as to the state of mind at the critical time, that is, when the current group definition was put in place (by the making of a s 33K order upon the filing of the consolidated pleading on 19 July 2022). This conclusion hardly jars with the objective realities of putting together a securities class action by its promoters. But this is not the same thing as an express finding that those drafting the pleading contemporaneously turned their mind to a particular platform or platforms not mentioned and intended to plead out a case referring to that platform in the group definition and that this intention somehow miscarried.
For these reasons, I am not satisfied that error has been shown in the primary judge making the finding his Honour did (at [151]). Whether this factual finding is sufficient for the purposes of the applicants is another matter.
D.3: Did the primary judge err in failing to find that the applicants had conducted the proceeding on the basis that the group members included all persons who acquired an interest in shares in BHP Ltd and BHP Plc during the relevant period, irrespective of the market, trading platform or means of trade through which they acquired that interest (contention 1(a))?
As the joint reasons note, this contention was not at the forefront of the argument of the appeal. This is understandable as group membership must be determined objectively and the fact the applicants continued to labour under a misapprehension as to whether all persons who acquired shares in BHP Ltd and BHP Plc during the relevant period were group members is not to the point. It adds nothing to the initial mistake made by the applicants.
D.4: Did the primary judge err in failing to find that persons who acquired an interest in shares in BHP Ltd and BHP Plc during the relevant period on a trading platform or market other than the ASX, LSE or JSE (new group members) had reasonable grounds to believe that they were group members (contention 1(b))?
A similar point can be made as to the assertion that the primary judge erred in failing to find that persons who only acquired an interest in shares in BHP Ltd and BHP Plc during the relevant period on a trading platform or market other than the ASX, LSE or JSE (that is, proposed new group members) had reasonable grounds to believe that they were always group members. This fact may have some relevance in other contexts (such as on an application under s 1322(4)(d) of the Corporations Act to extend the time in which a claimant could bring a case or in assessing prejudice to third parties), but is not relevant to the objective characterisation of who is a group member. In any event, there is no error evident in the primary judge’s conclusion in this regard.
D.5: Did the primary judge erroneously depart from the prior decision of Moshinsky J in Impiombato (No 4) (at [24]–[26]) (that there was a logical reason for the original description of group members having regard to the allegations concerning causation of loss) (appeal ground 4)?
I agree it is unnecessary to determine appeal ground 4.
D.6: Did the primary judge place insufficient weight on the prejudice to BHP Ltd from the loss of limitation defences (appeal grounds 5 to 7)?

To my mind, the heart of this appeal is the contention that the primary judge erred by attributing little weight to the prejudice that would be suffered by BHP Ltd in back-dating the amendments to the commencement of the proceeding, thereby depriving BHP Ltd of limitation defences.
His Honour (at [93]) accepted that expanding the class would increase BHP Ltd’s potential aggregate liability in the proceeding occasioning prejudice. However, the primary judge found (at [182] and [189]) that this prejudice was “unlikely to be material in the context of the case”.
His Honour referred (at [183]) to the evidence that a total of approximately 14.5 billion BHP shares were traded on the ASX, LSE and JSE during the relevant period and that approximately 3.3 billion BHP shares were traded on secondary platforms during the same period. His Honour correctly dismissed as simplistic the contention of BHP Ltd that this involved an “approximately 22.8% increase in the size of the class (3.3 billion of 14.5 billion acquisitions)”. The primary judge recognised that this analysis was flawed (even leaving aside the position of existing group members who were a multiple platform group member) given any increase in aggregate value of the group member claims was imprecise.
It is the next step, however, that I consider to be problematical. With great respect to the careful and learned reasons of his Honour, for the reasons that follow, I do not think it was open to find (at [189]) that the prejudice “was unlikely to be material in the context of the case” and, as a consequence, error has thereby been established.
It is common ground that the limitation periods applicable to the claims advanced in the class action are six years: see ss 1041I(2), 1317K and 1325(4) of the Corporations Act.
Although there are textual differences between these provisions, they can all be seen, at least generally, as reflecting and representing the Parliament’s intention and judgment that the welfare of society is best served by these statutory causes of action, allowing for an award of compensation being litigated within a limited time of six years, notwithstanding that the enforcement of these time periods may result in good causes of action being defeated: see, more generally, Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (at 553 per McHugh J).
It has long been thought that such limitation periods are justified by, inter alia, a recognition that as time goes by relevant evidence is likely to be lost; it is oppressive to a respondent to allow an action to be brought long after the circumstances that gave rise to it occurred; it is desirable for people to be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them after a certain time; and, importantly, the public interest requires that disputes be settled as quickly as possible: Brisbane South Regional Health Authority (at 553 per McHugh J).
This is not a case where a plaintiff in actual or proposed inter partes litigation is seeking an extension in relation to relief arising from a justiciable controversy between the plaintiff and a defendant. By way of contrast, here we are partly dealing with non-parties; strangers to the class action, who have taken no steps to agitate any relevant claim they have or may have had. By operation of law, any controversy between the proposed new group member and BHP Ltd, which upon amendment is now said to give rise to an entitlement to statutory compensation, has either not arisen or has already been quelled by operation of law, given the effluxion of six years.
Irrespective of the fact that BHP Ltd is facing the substantial claims of existing group members, there is no extant issue between BHP Ltd and the third party strangers affected by the proposed amendment, and BHP Ltd, absent any amendment, is entitled to act and organise its affairs on the basis that no controversy exists between it and those third parties. Resuscitating a controversy in these circumstances does amount to material prejudice.
For completeness, even though no evidence was adduced that any third party (that is, a proposed new group member) did wish to seek relief, this prejudice exists irrespective as to whether one of the third parties did now belatedly decide that they wished to seek relief. It was not in dispute below that different judicial views have been expressed as to when s 1322(4) of the Corporations Act may be invoked to extend limitations periods, including, most recently, in Binqld Finances Pty Ltd (in liq) v Binetter [2024] FCA 361. In Binqld, Kennett J considered the potential use of s 1322(4)(d) to extend the limitation period prescribed in s 1317K for bringing an application for a compensation under s 1317H and concluded that an earlier decision, Austructures Pty Ltd v Makin [2014] VSC 544; (2014) 103 ACSR 307, ought to be followed. In Austructures, Almond J had held, in the context of an amendment application, that the general remedial provision cannot operate to extend the time limit prescribed in s 1317K. No consideration was given in the judgment below (or argument presented on this appeal) as to the correctness of this line of authority or whether it can be distinguished in the context of the other differently worded limitation periods presently applicable (ss 1041I(2) and 1325(4)); nor was error alleged in the conclusion of the primary judge that it was unnecessary to decide, for the purposes of this application, the availability or otherwise of an order under s 1322(4) if the amendment for the proposed new group members did not “relate back”. The possibility or otherwise of an entitlement of a third party to make an application to extend any applicable period does not detract from the existence of a material prejudice in resurrecting expired claims more generally.
D.7: Did the primary judge err in taking into account the prejudice to new group members if the amendments were not permitted to relate back to the commencement of the proceeding (appeal ground 8)?
By reason of the fact that the failure to advance claims on behalf of the proposed new group members resulted from a drafting error, the primary judge considered (at [154]) that the disadvantage to proposed new group members is a relevant prejudice to consider on the application.
The difficulty with taking into account this consideration is that there was no evidence adduced that any third party wished to agitate any claim. One would ordinarily think a relevant prejudice arises because a proposed outcome prevents a person enjoying a benefit or right the person otherwise wished to enjoy or exercise. At present, the claims are time-barred by the effluxion of time, and no one has indicated any intention to seek any extension (even if it was available). It is difficult to see how a relevant and real prejudice to these third parties does exist on the evidence before the primary judge. Notably, the prejudice was not expressed by being a prejudice to another third party, being the litigation funder, whose commercial interests are no doubt affected by any failure to augment the value of the collective claims in the class action by augmentation of the class.
However, error has otherwise been established and a fair reading of the judgment does not demonstrate that any finding in this regard was material to the exercise of his Honour’s discretion. Hence it is unnecessary to reach a conclusion as to whether appeal ground 8 should be upheld.
D.8: Did the primary judge erroneously distinguish and thereby fail to follow the principles stated in Ethicon Sàrl (appeal ground 9)?
I agree with the joint reasons as to why there is no substance in this ground. The primary judge plainly understood the “default” position as explained by the Full Court in Ethicon Sàrl and did not err in his approach to the guidance provided by that decision.
E RE-EXERCISE OF DISCRETION
It follows that I have come to the same conclusion as the joint reasons that the discretion must be re-exercised.
I proceed on the basis that there was no error in the primary judge’s finding of fact that the applicants did not intend to exclude any group of persons who acquired BHP shares and those responsible for the drafting did not turn their minds to the trading of shares in BHP Ltd and BHP Plc on trading platforms or exchanges other than the ASX, LSE or JSE. In this way, as the primary judge found (at [151]), the “operative mistake” was inadvertently framing the group definition in a way which was inconsistent with the applicants’ intention, and the intention of the pleader.
In the light of this, and although the discretion must be exercised by reference to all relevant matters, the following factors are of significance.
First, as to the finding of fact made by the primary judge that it is likely to be difficult for persons to prove the share exchange upon which their shares were acquired, any notion this causes some problem relevant to amendment for existing group members (including the multiple platform group members) is unpersuasive. Each group member will need to prove they suffered loss upon a purchase of BHP shares, irrespective as to the registry upon which the share was acquired. Whether there is a difference in the approach to causation or loss depending upon the relevant registry will either be a matter to be determined at the initial trial (to the extent it is relevant to any issue of commonality determined at that initial trial) or later when it comes to assessing an individual claim of a multiple platform group member. How a multiple platform group member proves their loss is a matter for trial.
If the applicants were granted leave to amend the group definition with effect from the commencement of the proceeding, it puts it too highly to suggest that this will overcome any alleged difficulties of proof. Determining the identity of the registry will either be relevant to proving causation or loss or it will not be. We have insufficient information to know whether that will be the case at all, or at the initial trial, or later when it comes to individual assessment. This is just a matter inherent in the nature of the claim. Focussing only upon class composition, if an amendment was allowed to relate back, the proposed new group members, who only purchased on an exchange other than the ASX, LSE or JSE, will need to prove they are a member of the class, but that is again just a consequence of the nature of the claim.
Secondly, although I accept a drafting mistake was made, in the absence of a third party or parties suggesting that they wish to agitate a claim against BHP Ltd or any evidence that they thought their limitation period had been tolled (and hence refrained from taking steps to protect their position), I do not place significant weight on the alleged prejudice to any proposed new group members caused by the drafting mistake. No doubt it is in the commercial interests of the promoters of the class action to increase the class and hence quantum, but that is not how the prejudice was put. We must deal with the evidence as it is, and we are not dealing with an application by a person or a group of persons to extend the period for bringing a claim who contend they have suffered prejudice (to the extent such an application is able to be brought).
Thirdly, for the reasons I have explained, the interests of BHP Ltd will be materially prejudiced by granting leave to amend the group definition with effect from the commencement of the proceeding by bringing in claims of new group members.
Finally, again accepting a drafting mistake was made, the principles regarding amendments to correct a mistake in the name or identity of a party have little present relevance. We are in a different realm of discourse than a case where a claim was made against AB Ltd when the intention was always to make it against ABC Ltd. I respectfully disagree that orders granting leave to correct a lawyer’s mistake in the name or identity of a party have any relevant similarity with the bespoke task of changing group membership. In this regard, it is worth repeating (and emphasising an important part) of what the Full Court said in Ethicon Sàrl (at 406–407 [49]–[52]):
[49]    The second difficulty is more significant and relates to the inaptness, or at least the limitations of, drawing analogies between aspects of ordinary inter partes litigation and Part IVA procedures. Although s 33ZG provides that nothing in Part IVA affects the Court’s powers under other provisions, Part IVA provides its own bespoke and detailed regime and, in significant respects, the evident purpose of the Part is to displace generally understood procedures: see Wong v Silkfield Pty Ltd [1999] HCA 48; 199 CLR 255 at 260-261 [11] (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ).
[50]      By the amendment of a group definition, a new group member affected is not becoming a party, still less is the group member an existing party seeking to bring a new cause of action arising out of similar circumstances. The legal consequence is that the claim of a new group member, which claim gives rise to at least one substantial issue of law or fact with others, has become subject to the operation of the Part, subject to opt out or declassing. When one recognises that the regime expressly contemplates and provides for the individuality of claims within a group proceeding, what is brought into focus is that an order for amendment, which has the consequence of expanding the group definition, is sui generis and that analogies drawn from other contexts are apt to mislead.
[51]  It is consistent with the scheme introduced by Part IVA and, in particular, the need for there to be certainty as to the persons who comprise the class at all times, that the Group Definition Amendment should have been ordered to take effect from the date of amendment, being the date of filing of the 5FASOC. To adopt that course is consistent with the expansion of the class effected by the earlier Amendment Orders which, unfortunately, were not drawn to the attention of the primary judge in the present context. Apart from anything else, this prevents the topsy turvy notion that someone retrospectively becomes a group member on commencement, when the Court has thus far proceeded on the basis that they are not group members. As a matter of principle, such an approach would avoid the vice of potentially resuscitating causes of action by persons who have never sought to agitate them. It would be odd that by becoming a group member through the augmentation of a class, substantive rights were conferred on a claimant that had been either extinguished or barred by operation of statute and could not otherwise be advanced by that claimant.
[52]  Before leaving this topic it is worth making a further point. Given the suspension of limitations caused by the operation of s 33ZE, the question of inclusion (or, as occurred here, unusually, exclusion) of group members has potentially important consequences on substantive rights. As does the date when any such order is to take effect. Whatever might be the nature of other amendments to a statement of claim, or to relief claimed in an application, attention must be given by parties to the legal consequences of class composition changes. Irrespective as to when other amendments might take effect, the consequences of amendments to group definition can affect the rights of third parties, being the absent group members or proposed group members. Although it would be inappropriate to lay down inflexible rules, the default position is that a s 33K order (or an equivalent order under s 33ZF) has effect from the time the definition is changed, consistent with the requirements of class certainty. It is a sound practice for applicants, in seeking such orders, to deal separately with amendments concerning class composition to assist in avoiding any confusion.
(Emphasis added)
The observations resonate with force in the present circumstances. Notwithstanding the mistake made, I agree it would be contrary to the interests of justice to change the group membership to include belatedly persons whose claims cannot now be brought because of the effluxion of time. Hence, I agree there is a need to vary the orders of the primary judge.
The orders referred to in the joint reasons are to be made. For my part, I would have stood the matter over to allow any necessary amendments to give effect to the new pleading and, importantly, to address the issues of ambiguity and uncertainty in class composition to which I referred in Section C of these reasons. Further, I do not consider it necessary to make a “relate back” order to allow the whole of the s 33C claim of those group members who are multiple platform group members (and whose claims were within a class action commenced within time) to be advanced when appropriate (either at some stage during the currency of the class action or following any declassing).

I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee.
Associate:
Dated: 12 February 2025

Appeal from:	Impiombato v BHP Group Limited (No 4) [2023] FCA 1354 Impiombato v BHP Group Limited (No 5) [2024] FCA 591
File numbers:	VID 989 of 2023 VID 553 of 2024
Judgment of:	BEACH, LEE AND O'BRYAN JJ
Date of judgment:	12 February 2025
Catchwords:	REPRESENTATIVE PROCEEDINGS – appeal from interlocutory decision regarding interpretation of group member definition – relevant principles concerning the interpretation of a pleading – no error in primary judge’s conclusion demonstrated – appeal dismissed REPRESENTATIVE PROCEEDINGS – appeal from interlocutory order that amendments to the originating application and statement of claim, including amendments to the group member definition, take effect from the commencement of the proceeding – application of principles stated by the Full Court in Ethicon Sàrl v Gill (2018) 264 FCR 394 – primary judge’s discretionary decision based on material errors of fact – appeal allowed and discretion re-exercised – amendment to the group member definition should take effect from the date of the amendments –amendments to the claims of existing group members should take effect from the commencement of the proceeding
Legislation:	Australian Securities and Investments Commission Act 2001 (Cth) Corporations Act 2010 (Cth) s 1322 Evidence Act 1995 (Cth) ss 27, 75, 167 Federal Court of Australia Act 1976 (Cth) ss 24, 33H, 33K, 33ZE, 33ZF, 59(2B), Federal Court Rules 2011 (Cth) rr 8.03, 8.05, 8.21, 16.53
Cases cited:	Allesch v Maunz (2000) 203 CLR 172 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345 Austructures Pty Ltd v Makin [2014] VSC 544 Bauer Consumer Media Ltd v Evergreen Television Pty Ltd [2019] FCAFC 71 BHP Group Ltd v Impiombato (2022) 276 CLR 611 Binqld Finances Pty Ltd (in liq) v Binetter [2024] FCA 361 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Bright v Femcare Ltd [2002] FCAFC 243 Brown v Jammal [1995] NSWCA 62 Caason Investments Pty Ltd v Cao (2015) 236 FCR 322 Dare v Pulham (1982) 148 CLR 658 Dyczynski v Gibson (2020) 280 FCR 583 Ethicon Sàrl v Gill (2018) 264 FCR 394 Fox v Percy (2003) 214 CLR 118 Gould v Mount Oxide Mines Ltd (1916) 22 CLR 490 House v The King (1936) 55 CLR 499 Hua Wang Bank Berhad v Federal Commissioner of Taxation (No 15) (2013) 217 FCR 26 Impiombato v BHP Group Limited (No 4) [2023] FCA 1354 Impiombato v BHP Group Limited (No 5) [2024] FCA 591 Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (2008) 73 NSWLR 653 J Wisbey & Associates Pty Ltd v UBS AG [2021] FCA 36 Karl Suleman Enterprizes Pty Ltd (in liquidation) v Pham [2013] NSWSC 110 Keynes v Rural Directions Pty Ltd (No 4) [2011] FCA 304 Kuligowski v Metrobus (2004) 220 CLR 363 Lantrak Holdings Pty Ltd v Yammine [2023] FCAFC 156 Lee v Lee (2019) 266 CLR 129 Newtronics Pty Ltd v Gjergja [2008] VSCA 117 Nikolay Malakhov Shipping Co Ltd v SEAS Sapfor Ltd (1998) 44 NSWLR 371 Norbis v Norbis (1986) 161 CLR 513 Northern Territory v Sangare (2019) 265 CLR 164 Petrusevski v Bulldogs Rugby League Club Ltd [2003] FCA 61 Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 Professional Administration Service Centres Pty Ltd v Commissioner of Taxation [2012] FCAFC 180 Provide Nominees Pty Ltd v Australian Securities and Investments Commission (2024) 301 FCR 569 Revian v Dasford Holdings Pty Ltd [2001] FCA 777 Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22 Sent v Jet Corporation of Australia Pty Ltd (1986) 160 CLR 540 Singtel Optus Pty Ltd v Robertson [2024] FCAFC 58 Wang v Hur [2024] QCA 126 Warren v Coombes (1979) 142 CLR 531 Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 Wong v Silkfield Pty Ltd (1999) 199 CLR 255 John Levingston, The Law of Affidavits (Federation Press, 2013) Justice Alan Robertson, ‘Affidavit Evidence’ [2014] Federal Judicial Scholarship Articles
Division:	General Division
Registry:	Victoria
National Practice Area:	Commercial and Corporations
Sub-area:	Corporations and Corporate Insolvency
Number of paragraphs:	393
Date of hearing:	8 November 2024
Counsel for the appellants in VID 989 of 2023 and the respondents in VID 553 of 2024:	P W Collinson KC with E L Olivier
Solicitors for the appellants in VID 989 of 2023 and the respondents in VID 553 of 2024:	Phi Finney McDonald and Maurice Blackburn Lawyers
Counsel for the appellant in VID 553 of 2024 and the respondent in VID 989 of 2023:	W Harris KC with K Loxley, B Cameron and J Moir
Solicitors for the appellant in VID 553 of 2024 and the respondent in VID 989 of 2023:	Herbert Smith Freehills

ORDER MADE BY:	BEACH, LEE AND O'BRYAN JJ
DATE OF ORDER:	12 FEBRUARY 2025