Mumford v EML Payments Ltd - [2025] VSC 203

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

GROUP PROCEEDINGS LIST

S ECI 2021 04738

PAUL LEIGHTON MUMFORD	First Plaintiff
GAYLE MUMFORD	Second Plaintiff
v
EML PAYMENTS LTD	Defendant

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JUDGE:	Delany J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 March 2025
DATE OF RULING:	16 April 2025
CASE MAY BE CITED AS:	Mumford v EML Payments Ltd
MEDIUM NEUTRAL CITATION:	[2025] VSC 203

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PRACTICE AND PROCEDURE — Group Proceeding — Application to amend group definition to exclude persons defined as group members in further amended statement of claim — Indorsement on the writ — Whether definition of group members in the original statement of claim indorsed on the writ had been amended in accordance with Part IVA of the Supreme Court Act 1986 (Vic) as a result of amendments to the definition of group members in the amended statement of claim — No previous application by the plaintiffs pursuant to s 33K of the Supreme Court Act 1986 (Vic) to amend the writ — The persons proposed to be excluded are not existing group members — Application refused — Leave to amend the definition of group members in the writ to accord with the definition in the further amended statement of claim — Supreme Court Act 1986 (Vic) Part 4A, ss 33H, 33K — Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 5.04, 36.01 — Impiombato v BHP Ltd (No 5) [2024] FCA 591, Bray v F Hoffman‑La Roche Ltd [2003] FCA 1505, Pharm‑a‑Care Laboratories Pty Ltd v Commonwealth of Australia (No 3) [2010] FCA 361, Jojeni Investments Pty Ltd v Mosman Municipal Council [2015] NSWCA 147, applied — Impiombato v BHP Group Ltd [2025] FCAFC 9, Renowden v McMullin [1970] HCA 24, cited.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	William AD Edwards KC with Owen Nanlohy	Shine Lawyers
For the Defendant	Karan Raghavan with Kathryn J Browne	Herbert Smith Freehills

TABLE OF CONTENTS

The application................................................................................................................................... 3

The legislative framework............................................................................................................... 4

Amendments to the statement of claim......................................................................................... 7

The proper construction of s 33K of the SCA............................................................................... 8

Disposition........................................................................................................................................ 18

HIS HONOUR:

The proceeding is a group proceeding pursuant to Part 4A of the Supreme Court Act 1986 (Vic) (‘SCA’) brought by the plaintiffs against EML Payments Limited (‘EML’).

The proceeding was commenced by writ on 16 December 2021. The writ was indorsed with a statement of claim. The statement of claim describes the group members to whom the proceeding relates as persons who or which:

(a)acquired an interest in ordinary shares in the defendant (EML Shares) during the period between 19 December 2020 to 18 May 2021 (Relevant Period);
(b)suffered loss or damage by reason of the conduct of the defendant (EML); and

(‘original group member definition’).

The statement of claim alleges that EML made misleading misrepresentations or omissions and failed to comply with its continuous disclosure obligations as an ASX listed company, breaching relevant provisions of the Corporations Act 2001 (Cth) (‘Corporations Act’), the

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] VSC 203
Decision Date: 16 April 2025

CaseChat Overview and Summary

The case of Mumford v EML Payments Ltd involved a dispute regarding the definition of a group in a group proceeding under the Supreme Court Act 1986 (Vic). The plaintiffs sought to amend the definition of the group in their further amended statement of claim to exclude certain individuals who were identified as group members in the initial statement of claim. The court had to determine whether the definition of group members in the original statement of claim, which was indorsed on the writ, had been amended in accordance with Part IVA of the Supreme Court Act 1986 (Vic) due to the changes in the amended statement of claim.

The legal issues before the court were whether the court had the authority to amend the group definition in the writ without a prior application under s 33K of the Supreme Court Act 1986 (Vic) and whether the proposed exclusions constituted existing group members. The court analysed relevant case law and legislation to determine the appropriate course of action. It found that the plaintiffs had not made a prior application to amend the writ, and the individuals proposed to be excluded were not existing group members.

The court's reasoning was based on the statutory provisions and case law, which indicated that amendments to the group definition in the writ could only be made if certain conditions were met, such as a prior application under s 33K. The court also considered the principle that amendments to the writ should not be made lightly and that any changes should be in accordance with the rules and relevant legislation. Consequently, the court refused the application to amend the definition of group members in the writ to align with the further amended statement of claim. The court did, however, grant leave for the plaintiffs to amend the definition of group members in the writ to accord with the definition in the further amended statement of claim.

The court's final orders included the refusal of the application to amend the group definition in the writ and the grant of leave to amend the definition to align with the further amended statement of claim. The court's decision underscored the importance of adhering to procedural requirements and the need for clarity in the definition of group members in group proceedings.

Orders