J Wisbey & Associates Pty Ltd v UBS AG

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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:

  1. This representative proceeding concerns alleged cartel conduct by the respondents involving foreign currency spot…

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Details
Case
[2021] FCA 36
Decision Date

CaseChat Overview and Summary

The applicant, J Wisbey & Associates Pty Ltd, brought a representative proceeding against the respondent, UBS AG, alleging cartel conduct in relation to foreign currency instruments. The dispute was heard by the Federal Court of Australia. The representative proceeding was brought on behalf of a proposed class of persons who had entered into foreign currency instruments with UBS AG, alleging that UBS AG had engaged in a cartel with other financial institutions to manipulate the market for foreign currency instruments.

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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