Brady v NULIS Nominees

the applicant's submissions 5 Argument about whether questions concerning aggregate damages should be included in the common questions for the initial trial proceeded over the course of two days. It was, as I have already observed, one of several questions before the Court for resolution. 6 In that regard, one of those questions was whether NULIS had provided adequate discovery and whether additional discovery was required. In that context the applicant sought standard or, in the alternative, particular discovery of data evidencing the dates and amounts of commissions paid for each group member and the value of those commissions over the relevant period. He did so on the basis that the data was directly relevant to the applicant's liability case and to its aggregate damages case. Ultimately that question was resolved between the parties by NULIS agreeing to provide a spreadsheet in admissible form which sets out the total grandfathered commissions paid to financial services licensees on an aggregate basis for each product and broken up into fortnightly amounts. 7 That is of relevance because there was overlap between the applicant's submissions as to why additional discovery was required and why aggregate damages should be considered at the initial trial. Given that the application for further discovery was resolved between the parties, a number of the submissions common to both applications fall away. 8 Subject to that observation, the applicant submitted that aggregate damages should be determined at the initial trial for the following reasons: (1) the Court has power to make an award of aggregate damages; (2) the question of the aggregate amount of damages is inexorably linked with the applicant's case on liability such that it is impossible to separate out the two matters. By reference to his pleaded case, the applicant contended that a critical part of his case on liability involves establishing the dates of payment and amounts of commissions paid out to group members' accounts and to financial services licensees from 1 July 2016 to 23 September 2020. That is because the aggregate amount of commissions paid is a fact that will need to be determined at the initial trial to answer the proposed common questions on liability and is relevant to determine, among other things, whether NULIS contravened its obligations in relation to payment of those commissions and to understand what was happening in relation to the "trade up" program; (3) he is entitled to advance his case as pleaded having regard to the relief he claims; (4) including the question of aggregate damages as part of the initial trial does not predetermine the issue but simply poses the issue for determination. The applicant submitted that it will always be open to NULIS to raise whatever argument it wishes as to the appropriateness of making an award of damages in an aggregated amount; (5) the scheme of Pt IVA and s 37M of the Federal Court Act support the resolution of as many issues as possible as part of the initial trial. The applicant submitted that the initial trial process is designed to avoid the need for a multitude of subsequent individual trials and that after liability is determined, if NULIS' position is accepted, there would potentially be 300,000 individual damages hearings in the absence of the parties reaching agreement. The applicant contended that, based on an estimate that the average loss for each member is approximately $650, providing an economic means by which there can be a resolution of these modest claims is consistent with the scheme of Pt IVA and s 37M of the FCA Act. The applicant submitted that adopting its approach would avoid the possibility of individual damages hearings and be consistent with the objective that the Court should attempt to resolve as many issues as it possibly can at the initial trial; (6) from a case management perspective the applicant's approach is a common sense one and an effective use of the Court's resources; and (7) the applicant rejected NULIS' submission that, even if he was successful, NULIS' promise to make good assets of the fund would make the need to consider the quantum of loss or damage redundant.

consideration 9 The question that arises is whether aggregate damages should be determined at the initial trial. If that is determined in favour of the applicant, questions enabling the determination of aggregate damages will be included in the common questions for the initial trial. 10 The scope of the initial trial is to be determined in accordance with the scheme of Pt IVA of the Federal Court Act which uses the claims of the representative applicant as the vehicle by which the common claims of fact and law can be determined in a manner binding on all members: see Gill v Ethicon Sarl (No 3) [2019] FCA 587; (2019) 369 ALR 175 at [3]-[11]. Added to that, the scope of the initial trial (and the common questions) is to be determined in accordance with s 37M of the Federal Court Act and in a way that best promotes the overarching purpose, namely the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: see Dillon v RBS Group (Australia) Pty Ltd (2017) 252 FCR 150 at [68]. 11 As observed by Gillard J in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2003] VSC 27; (2003) ATR 81-692 (at [42]) "it is important that the Court conducts group proceeding litigation in a practical manner and ensures that as many questions of law and fact having a degree of commonality are decided" but also that "a group proceeding is not concerned with the complete cause of action of a claimant, in the sense that all elements of the cause of action and issues raised are determined in the proceeding. The Court considers and determines the common questions of law and fact". 12 The applicant seeks to have included in the common questions for the initial trial, questions relating to aggregate damages. The power to award aggregate damages is found in s 33Z(1)(f) of the Federal Court Act which provides that in determining a matter in a representative proceeding the Court may, among other things, award damages in an aggregate amount without specifying amounts awarded in respect of individual group members. Subject to s 33V, the Court is not permitted to make an award of damages under s 33Z(1)(f) unless a reasonably accurate assessment can be made of the total amount to which group members will be entitled under the judgment: see s 33Z(3) of the Federal Court Act. Section 33V concerns settlement and discontinuance of a representative proceeding and is not presently relevant. 13 Where the Court makes an order for the award of damages, the Court may give such directions (if any) as it thinks just in relation to the manner in which a group member is to establish his or her entitlement to share in the damages and the manner in which any dispute regarding the entitlement of a group member to share in the damages is to be determined: see s 33Z(4) of the Federal Court Act. 14 NULIS submitted that typically orders for damages under s 33Z(1) of the Federal Court Act will occur after the initial trial. As a matter of logic, practice and the nature of proceedings under Pt IVA that may be so. However, recently, in Williams v Toyota Motor Corporation Australia Limited [2021] FCA 1425 Lee J considered, as a separate question, whether "upon a proper construction of s 33Z of the [Federal Court Act], at the conclusion of the initial trial, if the Court is satisfied that it is able to determine, on a common basis, that group members are entitled to an award of damages in respect of the heads of damage that are in issue at the initial trial, does the Court have power to make an award of damages for group members in respect of those heads of damage". His Honour answered that question in the affirmative. 15 His Honour identified that the issue raised by the separate question identified was whether the applicants were entitled to bifurcate group members' claims for monetary relief by obtaining a separate award of aggregate damages in the amount of what was described as "Alleged Common Damages" or, put another way, if at the conclusion of the initial trial the Court was satisfied that it was able to determine, on a common basis, that group members are entitled to an award of damages in respect of those common damages, does it have power to make a subsequent award of damages for group members in respect of their individualised alleged residual monetary relief? 16 The issue raised before me is of course different. There is no issue of bifurcation of damages. Rather the applicant seeks to bring forward the question of quantification of aggregate damages to the initial trial. Notwithstanding that, his Honour's observations about the manner in which a class action operates, the purpose of Part IVA and the construction of s 33Z(1)(f) of the Federal Court Act apply equally here. To that end, at [53]-[77] Lee J addressed the construction of s 33Z. In particular in relation to s 33Z(1)(f) and s 33Z(3) his Honour relevantly said: [70] Section 33Z(1)(f) confers power on the Court to "award damages in an aggregate amount without specifying amounts awarded in respect of individual group members". However, it involves an important limitation: the Court must not make an award of damages under this provision "unless a reasonably accurate assessment can be made of the total amount to which group members will be entitled under the judgment". It is not appropriate that I set out in this judgment my views as to the practical operation of s 33Z(3) except to the extent necessary. I will restrict myself to three comments (the first two of which are less significant for present purposes than the third). [71] First, understanding precisely what is meant by a "reasonably accurate assessment" is not without difficulty, as is illustrated by the differing approaches of O'Loughlin J in Australian Competition and Consumer Commission v Golden Sphere International Inc (1998) 83 FCR 424 and Victorian Court of Appeal in Schutt Flying Academy (Australia) Pty Ltd v Mobil Oil Australia Ltd [2000] VSCA 103; (2000) 1 VR 545 ; see also Mobil Oil Australia Pty Ltd v Victoria [2002] HCA 27; (2002) 211 CLR 1 (at 72-73 [169] per Callinan J). Secondly, given that s 33Z(1)(f) contemplates aggregate damages can be made in relation to statutory compensation (which was not in dispute before me), whatever s 33Z(3) does mean, it seems to me the provision could not be construed as somehow modifying the approach to causation as reflected in the statute allowing the award of statutory compensation. [72] The third matter is the textual indication within s 33Z(3) to "the total amount to which group members will be entitled under the judgment" (emphasis added) and whether this creates, as Toyota submits, an implicit limitation to the effect that there must be a judgment which deals with all the damages to which group members are entitled. [73] Although I was initially attracted to this argument, on close analysis, it does not have substance. In the context of s 33Z(3), the term "the judgment" means the judgment given by the Court in determining particular issues, and "the total amount" depends entirely on the nature and scope of the relevant judgment. Because there can be multiple judgments in the course of the Court's management of a class action, there is no basis to construe the "total amount" as being the same as the total amount to which group members will be entitled in the proceeding or in the class action. [74] A judgment delivered at the conclusion of an initial trial that determines on a common basis some of the claims brought on behalf of group members but not others, and establishes that there is an entitlement to an award of damages to group members in respect of a head of damage that is determined on a common basis, would be a judgment of the kind described in s 33Z(1)(f) if the award of damages takes the form of an aggregate amount without specifying amounts awarded in respect of individual group members. It is of no significance that there may also remain unresolved issues, including in respect of a potential entitlement to a further award of damages in respect of an entitlement not established under that judgment. (Emphasis in original.) 17 At [75] his Honour observed that his approach to the construction of s 33Z of the Federal Court Act was consistent with the reality that the power to award damages under subs 33Z(1)(e) and (f) is a broad and flexible power consistent with the flexibility provided by Part IVA. That said, his Honour also recognised that there were questions of discretion as to whether a course proposed was appropriate. 18 The Court plainly has power to order or direct that questions of aggregate damages be considered at the initial trial. But as has been recognised the Court has a discretion as to whether to proceed in the manner suggested by the applicant. As set out above I have come to the view that it is not. My reasons follow. 19 First, issues that arise on the pleaded case in relation to relief do not lend themselves to bringing forward the assessment of aggregate damages. Putting to one side interest and costs, the applicant seeks the following relief in his amended originating application: 1. An order pursuant to s 55(3) of the Superannuation Industry (Supervision) Act 1993 (Cth) that the Respondent pay to the Applicant and each of the group members the amount of the loss and damage suffered by them as a result of the conduct of the Respondent pleaded in paragraphs 53 to 59 of the Further Amended Statement of Claim and that those damages be awarded in an aggregate amount pursuant to s 33Z(1)(f) of the Federal Court of Australia Act 1976 (Cth). 1a. Alternatively to the order referred to in paragraph 1 above, an order pursuant to s 315(3) of the Superannuation Industry (Supervision) Act 1993 (Cth) requiring the Respondent to: (a) pay compensation to the Applicant and each group member or, alternatively, into the accounts of the Applicant and each group member in the MLC Super Fund; or (b) restore the accounts of the Applicant and each group member in the MLC Super Fund. (Underlining and strikethrough omitted.) 20 The applicant seeks relief under s 33Z(1)(f) of the Federal Court Act for amounts alleged to be payable pursuant to s 55(3) of the SIS Act. Section 55(3) provides that subject to subs (4A), which is not presently relevant, a person who suffers loss or damage as a result of conduct of another person that was engaged in in contravention of subs 54B(1), 54B(2) or 54C(1) may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention. The applicant must first establish his entitlement to loss or damage under s 55(3) before seeking any order under s 33Z(1)(f) of the Federal Court Act. 21 At [60]-[62B] of the SFASOC the applicant pleads to the loss or damage which he alleges he has suffered as a result of NULIS making the Grandfathering Decision and the LRA Approval Decision: (1) at [60] the applicant alleges that, had NULIS complied with its "Statutory Covenants" in making and implementing the Grandfathering Decision and in making the LRA Decision, NULIS would not have made or implemented the Grandfathering Decision or made the LRA Approval Decision or continued to make the Conflicted Remuneration (as defined in the SFASOC) payments; (2) at [60A]-[60B] the applicant alleges that while he and each group member was a member of the MLC Super Fund they each had an equitable proprietary interest in the TUSS Division of that fund and that the value of those interests was reduced by reason of NULIS obtaining the Conflicted Remuneration from the applicant and each group member; (3) at [61]-[61A] the applicant alleges that he and each group member has suffered and continues to suffer loss or damage or, in the alternative, that he and each group member who ceased to be a member of the TUSS Division of the MLC Super Fund between 1 July 2016 and 23 February 2021 or had "unrestricted non-preserved" benefits in the TUSS Division of the MLC Super Fund between 1 July 2016 and 23 February 2021 suffered loss and damage; (4) at [62]-[62B] the applicant pleads: 62 By reason of the matters pleaded in paragraphs 61 and 61A above, the Applicant and each of the Group Members is entitled to recover the amount of that loss or damage from NULIS. Particulars SIS Act, s 55(3). 62A Further or in the alternative, by reason of the matters pleaded in paragraphs 53 to 60B above: (a) NULIS has breached the covenants contained in s 52(2)(b), (c), (d), (e) and (f) of the SIS Act as included in the MLC Super Fund Trust Deed by s 52(1) of the SIS Act; (b) the covenants contained in s 52(2)(b), (c), (d), (e) and (f) of the SIS Act were at all material times terms of the MLC Super Fund Trust Deed; (c) a condition of the RSE licence was that NULIS was required to properly perform the duties of trustee in respect of the MLC Super Fund; Particulars SIS Act, s 29E(1)(b). (d) NULIS as trustee of the MLC Super Fund was under a duty to restore or pay equitable compensation into the accounts of the Applicant and each Group Member in the MLC Super Fund or, alternatively, to pay equitable compensation to the Applicant and each Group Member for breach of trust; (e) by reason of the conduct pleaded in paragraphs 53 to 60B above, NULIS breached the terms of the MLC Super Fund Trust Deed as set out in the covenants in s 52(2)(b), (c), (d), (e) and (f) of the SIS Act; (f) NULIS has failed to restore or pay equitable compensation into the accounts of the Applicant and each Group Member in the MLC Super Fund or, alternatively, to pay equitable compensation to the Applicant and each Group Member for breach of trust as required by the condition of the RSE licence; (g) the Applicant and each Group Member are persons whose interests have been, are, or would be, affected by the conduct of NULIS as pleaded in sub-paragraph (d) and (e) above. Particulars The Applicant refers to and repeats paragraphs 60A, 60B and 60C above. 62B In the premise of paragraph 62A, the Applicant and Group Members are entitled to an injunction requiring NULIS to: (a) restore the accounts, or pay compensation into the accounts, of the Applicant and each Group Member in the MLC Super Fund; or (b) pay compensation to the Applicant and each Group Member. (Underlining and strikethrough omitted.) 22 At [62(c)] of its defence, albeit to the further amended statement of claim, NULIS pleads that if it has misapplied any assets, which is denied, then as trustee of the MLC Super Fund it is "obliged to (and will) make good the assets of the MLC Super Fund, and the appropriate relief is an order that it do so" and that upon the assets being made good no loss or damage will have been suffered by the applicant or any group member who remains a member of the MLC Super Fund. NULIS says that there is therefore no loss or damage to be recovered under s 55 of the SIS Act. NULIS submitted that its promise to make good is a powerful reason why the initial trial should be confined to questions of breach and determination of the applicant's individual claim and not extend to questions of aggregate damages. 23 The applicant has made a number of submissions as to why, in his opinion, that is not so including because: (1) the applicant's and group members' principal claim for relief is for compensation under s 55(3) of the SIS Act for loss and damage allegedly suffered by reason of their beneficial interests in the MLC Super Fund resulting from commissions paid using funds deducted from their accounts by NULIS. The right to seek compensation for such loss and damage is conferred by s 55(3) of the SIS Act unconstrained by general law principles and the loss is claimable even where the precise form and quantum of the beneficial interest may be contingent on prescribed events; (2) to that end, NULIS has admitted that members of the TUSS division of the MLC Super Fund have a "beneficial interest" in that fund but that the precise form of quantum of such interest is contingent on particular events and circumstances; (3) the legislative intention of s 55(3) of the SIS Act is clear. It is specifically intended to confer upon any person who has suffered "loss or damage" the right to seek compensation, unrestricted by general law principles and that it is the applicant and not NULIS who chooses the remedy that flows from NULIS' breach of obligation; (4) NULIS' proposed remedy is not one provided for by the SIS Act but would be available if he had sued in equity. Promising to provide a remedy to a different wrong does not make the remedy that is in fact available for the alleged breaches redundant; (5) NULIS does not have the ability to make good the assets of the MLC Super Fund for those group members who have already exited the fund and are no longer members. Those group members are entitled to seek relief under s 55(3) of the SIS Act as persons who have suffered loss and damage by reason of NULIS' misconduct; and (6) even if NULIS could dictate the form of relief, and the relief proposed was one that was available under the SIS Act, that does not make the question of quantum of aggregate damages redundant and, at the very least, two issues would need to be determined: what is the amount being restored; and does NULIS' proposal make whole the members who have left the fund. 24 In my opinion the issues raised by these submissions are not matters to be determined on this application. They throw up a number of threshold issues that require determination prior to reaching any consideration of quantum of aggregate damages. They are a powerful reason why questions of aggregate damages should not be dealt with at the initial trial. Rather the initial trial should be confined to questions of breach, determination of the applicant's individual claim and, in my opinion, issues such as whether the offer made by the respondent at [62(c)] of its defence is available, to whom, and whether it can supplant a claim for damages under s 55(3) of the SIS Act. All of these issues can be determined in the context of the applicant's claim. 25 To further explain, the fact that the parties are at odds about the offer made by NULIS at [62(c)] of its defence and that the Court will need to determine whether, at least in the case of group members who are still members of the MLC Super Fund, the undertaking to make good ought to be the remedy, rather than compensation for loss or damage under s 55(3) of the SIS Act, means that, as a matter of case management and consistent with the objectives in s 37M of the Federal Court Act, questions of aggregate damages would not be considered at the initial trial. If NULIS makes good [62(c)] of its defence, that may affect the relief to which certain group members might be entitled and, in turn, the evidence required to be led in support of an order under s 33Z(1)(f) of the Federal Court Act. 26 In short, the exercise of calculating loss and damage ought to only be undertaken following determination of any prior issues that might affect that calculation. That approach is in keeping with the purpose of Part IVA of the Federal Court Act and, as I have already observed, s 37M of that Act. 27 Secondly, and relatedly, is the distinction between vested and non-vested members of the MLC Super Fund and whether a member who does not have a vested interest in a superannuation fund can suffer loss or damage for the purposes of the SIS Act. That issue was considered in Brady (No 1) in the context of whether a sample group member should be appointed to represent the non-vested group members. Until that question is determined by the Court, the make-up of the cohort of group members in respect of whom an award of aggregate damages can be made is not known. In those circumstances and having regard to case management principles, it would be premature to have experts attempt to determine the quantum of aggregate damages. 28 That this is an appropriate approach is illustrated by part of the result in Capic v Ford Motor Company Australia Pty Ltd [2021] FCA 715; (2021) 154 ACSR 235. While it appears that the question of aggregate damages was included at the initial trial in that case, at [36] his Honour observed that: The group members sought damages on an aggregate basis under s 33Z(1)(f) of the Federal Court of Australia Act 1976 (Cth) ('FCA Act'). Such an award may only be made if the Court is satisfied that a reasonably accurate assessment can be made of the total amount to which group members will be entitled: s 33Z(3). Since it is not presently known which group members have which causes of action for reduction in value damages the question of whether there can be aggregation under this provision does not yet arise. The claim is therefore refused on the current state of the case. If and when the issue of whether the various repairs were effected within a reasonable time is resolved, this question may be revisited. 29 Thirdly, the question of aggregate damages will of course only arise if the applicant succeeds on his liability case. That anterior issue (and the amount payable to the applicant for any loss or damage he has suffered) ought to be determined prior to the parties embarking on the preparation of complex evidence in relation to aggregate damages. That is particularly so in circumstances where the applicant no longer claims that his liability case necessarily depends upon his damages case and where he has not yet identified the methodology he proposes for the assessment of aggregate damages, a matter which could, subject to the approach taken, impact on the ambit of the controversy between the parties and therefore the conduct of the trial. That being so, it is not appropriate to bring forward questions of aggregate damages until questions of liability are determined. To do so would not be in the interests of the efficient conduct of the proceeding having regard to the purpose of Part IVA and s 37M of the Federal Court Act. 30 Finally, the SFASOC introduces the concept of classes of beneficiaries. In particular: (1) at [51] of the SFASOC the applicant relevantly alleges that: (i5) there were classes of beneficiaries, or beneficiaries within those classes, who were paying Conflicted Remuneration without receiving the services to which they were entitled (including ongoing advice); (i6) there were classes of beneficiaries, or beneficiaries within those classes, who were paying Conflicted Remuneration without corresponding entitlements to the provision of services (including ongoing advice); (i7) different classes of beneficiaries and beneficiaries within a class, were receiving unequal benefits or services in return for the Conflicted Remuneration payments they made in that: (i) there were classes of beneficiaries required to pay Conflicted Remuneration without receiving any services (including ongoing advice); (ii) there were classes of beneficiaries who were entitled to receive services (including ongoing advice) in exchange for paying Conflicted Remuneration; and (iii) there were classes of beneficiaries who were not required to pay Conflicted Remuneration and who received the same services as the classes of beneficiaries in (i). (Underlining omitted.) (2) at [56] of the SFASOC the applicant alleges that in making and implementing the Grandfathering Decision NULIS contravened and continues to contravene subs 52(2)(b), (e) and (f) of the SIS Act and that, among other things: (a) [a] prudent superannuation trustee of the MLC Super Fund would have identified some or all of the following considerations as relevant: … (v5) whether, and to what extent, different classes of beneficiaries and beneficiaries within a class, paid different rates or amounts of Conflicted Remuneration; (v6) whether, and to what extent, different classes of beneficiaries and beneficiaries within a class, were receiving equal benefits or services in return for the Conflicted Remuneration payments they made; (Underlining omitted.) 31 As NULIS submitted, including the issue of aggregate damages in the initial trial in circumstances where it is not known how the existence of such classes will affect any claim for and calculation of aggregate damages would not be prudent. Rather the better and more efficient course is to await the outcome of the initial trial, where issues such as this will be resolved, before requiring the parties to embark on the process of addressing a claim for aggregate damages.

conclusion 32 For those reasons the question of aggregate damages should not be included in the initial trial. 33 I will make an order that the parties confer and, to the extent any orders are necessary to give effect to these reasons, the parties should provide short minutes or, if they cannot agree, they should provide competing sets of short minutes to my associate within seven days of publication of these reasons. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Markovic.