Thomas v The a2 Milk Company Ltd [No 2]

The plaintiffs brought proceedings against the defendant, a2 Milk Company Ltd, in the Supreme Court of Victoria, seeking relief in relation to alleged contraventions of both Australian and New Zealand statutes. The plaintiffs, who are residents of New Zealand and purchased shares in the defendant on the New Zealand Securities Exchange (NZSX), alleged that the defendant breached its continuous disclosure obligations and engaged in misleading or deceptive conduct under both Australian and New Zealand laws. The case presented issues regarding the Court's jurisdiction to hear claims under New Zealand statutes and the enforceability of these claims in Victoria. Additionally, the plaintiffs sought declaratory relief and monetary compensation for the alleged breaches of New Zealand statutes.

The court had to determine whether it had personal and subject matter jurisdiction to hear claims under New Zealand statutes. It also needed to decide if the Court could enforce claims in respect of foreign statutes and whether any exclusionary rules applied to claims advancing foreign governmental interests. Furthermore, the court had to consider whether the Court had the power to grant declaratory relief and award monetary compensation for the alleged contraventions of New Zealand statutes. The novelty of proceeding in the Supreme Court of Victoria for alleged contraventions of New Zealand law necessitated the determination of certain questions separately before trial.

The Court found that it had jurisdiction to hear claims under New Zealand statutes, as the defendant had filed an unconditional appearance. The court also found that the claims were enforceable in Victoria, and no exclusionary rules applied. The Court concluded that it had the power to grant declaratory relief in relation to the alleged contraventions of New Zealand statutes, but it did not have the power to award monetary compensation for loss or damage caused by the alleged breaches of New Zealand statutes, as there was no tortious claim for breach of statutory duty and no identified statutory entitlement.

The Court made orders for the separate determination of certain questions, including the enforceability of claims under New Zealand statutes and the Court's power to grant declaratory relief and award monetary compensation. The Court also appointed a contradictor to address the issues raised by the defendant regarding jurisdiction and enforceability. The determination of these questions will be crucial in the proceeding's progression, as group members in the Victorian group proceeding may need to decide whether to opt out based on the Supreme Court’s jurisdiction and power to award compensation.