FEDERAL COURT OF AUSTRALIA
Impiombato v BHP Group Limited [2025] FCAFC 9
Appeal from: File numbers: VID 989 of 2023
VID 553 of 2024Judgment 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
Bauer Consumer Media Ltd v Evergreen Television Pty Ltd [2019] FCAFC 71
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
Hua Wang Bank Berhad v Federal Commissioner of Taxation (No 15) (2013) 217 FCR 26
Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (2008) 73 NSWLR 653
Karl Suleman Enterprizes Pty Ltd (in liquidation) v Pham [2013] NSWSC 110
Continue reading Impiombato v BHP Group Limited
Sign in free to access the full text
- AGLC
- Impiombato v BHP Group Limited [2025] FCAFC 9
- Case
- [2025] FCAFC 9
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were the interpretation of the group member definition as set out in the originating application and the statement of claim, and the appropriateness of the timing for the amendments to these documents to take effect. The court had to determine whether the primary judge correctly interpreted the group member definition and whether the discretionary decision to set the amendments' effective date was based on material errors of fact. The court also considered the principles articulated by the Full Court in Ethicon Sàrl v Gill, which address the timing of amendments in representative proceedings.
The court found no error in the primary judge's interpretation of the group member definition, affirming that it was correctly understood to exclude shareholders who traded on platforms other than the specified exchanges. However, the court did find that the primary judge's decision on the timing of the amendments' effective date was based on material errors of fact. As a result, the court allowed the appeal and re-exercised the discretion, determining that the amendments to the group member definition should take effect from the date they were made, while amendments to the claims of existing group members should take effect from the commencement of the proceeding. The court set aside the previous order and specified new effective dates for the amended documents, and ordered written submissions on the costs of the interlocutory application and appeal to be filed by a specified date.
The court's final orders included allowing the appeal, setting aside the previous order, specifying new effective dates for the amended documents, and directing the parties to file written submissions on the costs of the interlocutory application and appeal. The court's decision clarifies the interpretation of the group member definition and the appropriate timing for amendments in the context of a representative proceeding, while also addressing the procedural aspects of the case.
Orders
Orders of the court
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
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]).