5 Paragraph 15 of the statement of claim is not proposed to be amended. It pleads that the plaintiff and each of the represented persons acquired units in the trust. I accept that such a pleading is appropriate. It may be material to the exercise of the discretion to make the declaration sought. It also identifies the basis upon which the represented persons are said to be members of the same class having the same interest in the proceedings.
6 The defendant opposes the proposed amendments on a number of grounds. Some of those are grounds I have already rejected and I will not deal with them further. The grounds which are new, or which are raised in relation to the new matters arising on the proposed pleading, are as follows.
7 First, it was submitted that the pleading fails to plead the facts showing that the represented persons are members of the same class such that they have the same interest in the proceeding (Campbell's Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 229 ALR 58 at [227]). In my view, paragraphs 11, 14 and 15, do sufficiently plead those matters.
8 Secondly, it is submitted for the defendant that there was disconformity between what is pleaded as the alleged misleading conduct and the terms of the declaration sought. It is submitted that the alleged misleading conduct is constituted by representations, expressed and implied, made by the combination of issuing the prospectus and making statements in it. I do not accept that there is a disconformity between the relief sought and the pleaded grounds on which the relief is claimed.
9 The representations pleaded in paragraphs 11 and 14 are said to arise by the conduct of the defendant alleged in paragraphs 2 and 9 of the statement of claim. Paragraphs 2 and 9 allege the issuing of the prospectus and the making of statements in it.
10 The declaration sought in paragraph 4(b) of the proposed amended originating process is a declaration that, by issuing the prospectus, the defendant engaged in misleading or, alternatively, misleading or deceptive, conduct. I see no difference between the issuing of the prospectus and the making of the statements contained in the prospectus which is issued.
11 It may well be that, if the plaintiff is successful at the final hearing in making good some or all of her claims as to the basis upon which she says that the representations were misleading, a more specific declaration would be made as to the respects in which the defendant engaged in misleading or deceptive conduct. That will be particularly important in the representative proceedings if, for example, it were held that the prospectus was misleading in respect of one of its statements but not in respect of others. However, the way in which the relief sought is presently framed, when read with the statement of claim, is sufficiently clear.
12 The third objection concerns paragraph 17 of the statement of claim. Paragraph 16 of the statement of claim alleges that the representations pleaded were material to the decision of the plaintiff to acquire units which she acquired in the trust.
13 Paragraph 17 alleges that further, and in the alternative, if the plaintiff had known of the facts pleaded in paragraph 10 above (which she did not) she would not have acquired any units in the trust.
14 It was put that this may be an attempt to plead an alternative case based on misleading conduct by silence without any specific allegation of the facts relied on for such a case. However, that is not the pleader's intention. It is not how I would have read paragraphs 16 and 17.
15 Mr Leopold for the plaintiff confirmed that paragraph 17 is pleaded in the alternative only to paragraph 16. It is, counsel said, a pleading of the causal mix by which the plaintiff alleges she suffered loss as a result of the defendant's conduct.
16 Paragraph 17 should be amended before the proposed statement of claim is filed to add the words "to paragraph 16" after the words "in the alternative".