Impiombato v BHP Group Limited (No 4)

FEDERAL COURT OF AUSTRALIA

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

File number:

VID 649 of 2018

Judgment of:

MOSHINSKY J

Date of judgment:

3 November 2023

Catchwords:

PRACTICE AND PROCEDURE – representative proceeding – form of opt out notice – where an issue arose between the parties as to the correct interpretation of “group member” definition

Legislation:

Federal Court of Australia Act 1976 (Cth), s 33H

Cases cited:

Impiombato v BHP Group Limited (No 2) [2020] FCA 1720

Klemweb Nominees Pty Ltd (as trustee for the Klemweb Superannuation Fund) v BHP Group Limited [2019] FCAFC 107; 369 ALR 583

Division:

General Division

Registry:

Victoria

National Practice Area:

Commercial and Corporations

Sub-area:

Corporations and Corporate Insolvency

Number of paragraphs:

32

Date of hearing:

18 October 2023

Date of last submissions:

27 October 2023

Counsel for the Applicants:

Mr AD Pound SC with Mr EL Olivier

Solicitor for the Applicants:

Phi Finney McDonald and Maurice Blackburn Lawyers

Counsel for the Respondent:

Ms WA Harris KC with Mr K Loxley

Solicitor for the Respondent:

Herbert Smith Freehills

ORDERS

VID 649 of 2018

BETWEEN:

VINCE IMPIOMBATO

First Applicant

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

Second Applicant

AND:

BHP GROUP LIMITED (ACN 004 028 077)

Respondent

ORDER MADE BY:	MOSHINSKY J
DATE OF ORDER:	3 NOVEMBER 2023

THE COURT ORDERS THAT:

1.The applicants confer with the respondent and provide to the Court a revised draft of the opt-out notice that reflects the Court’s reasons for judgment dated today.

2.Costs be reserved.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1. On 18 October 2023, a hearing took place before me for the purpose of considering the form of a proposed opt-out notice and associated orders.  Before the hearing, the parties had conferred in relation to the proposed notice and orders.  While the parties were largely agreed, there were five issues that needed to be resolved.  Four of those issues were resolved at the hearing and in an email from my chambers to the parties later on the day of the hearing.  However, I reserved my decision in relation to one issue, namely the correct interpretation of the “group member” definition in the applicants’ originating application and pleading.  This affects the wording of the opt-out notice.  These reasons concern that issue.

2. The definition of group member in the applicant’s consolidated originating application dated 16 August 2019 (the originating application) is 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; 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…