FEDERAL COURT OF AUSTRALIA
J Wisbey & Associates Pty Ltd v UBS AG [2021] FCA 36
File number: VID 567 of 2019 Judgment of: BEACH J Date of judgment: 29 January 2021 Catchwords: REPRESENTATIVE PROCEEDINGS – foreign currency instruments – alleged cartel conduct – corporations – practice and procedure – application to replead – group definition – numerous permutations and combinations of claims – pleading of alleged cartel understandings – availability of inferences to be drawn – application to replead refused Legislation: Competition and Consumer Act 2010 (Cth) ss 4E, 5, 44ZZRC, 44ZZRD, 44ZZRJ, 44ZZRK
Federal Court of Australia Act 1976 (Cth) ss 33H, 33J, 33ZB, Pt IVA
Trade Practices Act 1974 (Cth) ss 4E, 5, 45, 45A, 44ZZRC, 44ZZRD, 44ZZRJ, 44ZZRK
Cases cited: Australian Competition and Consumer Commission v Olex Australia Pty Ltd [2017] FCA 222
Bray v F Hoffman-La Roche Ltd [2002] FCA 1405
Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486
Hassid v Queensland Bulk Water Supply Authority t/as Seqwater [2017] NSWSC 599
IL v The Queen (2017) 262 CLR 268
Perera v GetSwift Ltd (2018) 263 FCR 92
Webster (Trustee) v Murray Goulburn Co-Operative Co. Ltd (No 2) [2017] FCA 1260
Wigmans v AMP Ltd (2019) 373 ALR 323
Division: General Division Registry: Victoria National Practice Area: Commercial and Corporations Sub-area: Economic Regulator, Competition and Access Number of paragraphs: 313 Date of hearing: 8 and 9 October 2020 Counsel for the Applicant: Mr B Quinn QC with Ms E Levine Solicitor for the Applicant: Maurice Blackburn Lawyers Counsel for the First Respondent: Ms WA Harris QC with Mr MI Borsky QC, Mr J Kirkwood and Ms JD Williams Solicitor for the First Respondent: Herbert Smith Freehills Counsel for the Second Respondent: Mr C Caleo QC with Mr A Barraclough Solicitor for the Second Respondent: Clayton Utz Counsel for the Third Respondent: Mr M Darke SC with Mr J Arnott Solicitor for the Third Respondent: Allens Counsel for the Fourth Respondent: Mr S Lawrance with Mr D Blazer Solicitor for the Fourth Respondent: Allen & Overy Counsel for the Fifth Respondent: Mr C Moore SC with Mr N De Young QC and Mr M Sherman Solicitor for the Fifth Respondent: King & Wood Mallesons ORDERS
VID 567 of 2019 BETWEEN: J WISBEY & ASSOCIATES PTY LTD (ACN 001 959 851)
Applicant
AND: UBS AG (ABN 47 088 129 613)
First Respondent
BARCLAYS BANK PLC (01026167)
Second Respondent
CITIBANK N.A. (ABN 34 072 814 058) (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
BEACH J
DATE OF ORDER:
29 JANUARY 2021
THE COURT ORDERS THAT:
1.The applicant’s application for leave to file and serve an amended originating application and an amended statement of claim in the form currently proposed to the Court be refused.
2.Costs reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BEACH J:
This representative proceeding concerns alleged cartel conduct by the respondents involving foreign currency spot…
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- Case
- [2021] FCA 36
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the applicant should be granted leave to replead its claims. The applicant sought to amend its pleadings to include a more detailed and complex group definition of the proposed class, as well as numerous permutations and combinations of claims. The respondent opposed the application on the grounds that it was an attempt to relitigate the issues and that the proposed amendments would not address the deficiencies in the applicant's case.
The court held that the application to replead should be refused. The court found that the proposed amendments did not address the deficiencies in the applicant's case and that the amendments would not provide clarity or certainty to the proceedings. The court also held that the applicant's attempt to plead numerous permutations and combinations of claims was an abuse of process and that the court would not permit such an approach. The court further held that the applicant's reliance on inferences that could be drawn from the evidence was not sufficient to establish a prima facie case for representative proceedings.
The court refused the application for leave to replead and reserved costs. The court held that the applicant's proposed amendments did not provide a sufficient basis for the grant of leave to replead and that the application should be refused. The court found that the applicant had not demonstrated that the proposed amendments would provide clarity or certainty to the proceedings or address the deficiencies in its case. The court further held that the applicant's attempt to plead numerous permutations and combinations of claims was an abuse of process and that the court would not permit such an approach. The court also found that the applicant's reliance on inferences that could be drawn from the evidence was not sufficient to establish a prima facie case for representative proceedings.
Orders
Orders of the court
1. The applicant’s application for leave to file and serve an amended originating application and an amended statement of claim in the form currently proposed to the Court be refused.
2. Costs reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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