First Plaintiff v Defendant

1 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').

2 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

3 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 ASIC Act 2011 (Cth) and the Australian Consumer Law codified in Schedule 2 to the Competition and Consumer Act 2010 (Cth). It is alleged that by reason of this conduct:

(a) some group members would not have purchased shares in EML had the alleged wrongdoing not occurred; and

(b) group members paid more for shares in EML than would have been the case had EML complied with its obligations and properly informed the market.

5 An amended statement of claim ('ASOC') was filed on 16 February 2023. The ASOC contained the following amended group member definition:

1. This proceeding is commenced as a representative proceeding pursuant to Part 4A of the Supreme Court of Victoria Act 1986 (Vic) by the plaintiffs on their behalf and on behalf of other 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 25 July 2022 (Relevant Period);

(b) suffered loss or damage by reason of the conduct of the defendant (EML); and

6 A further amended statement of claim was filed on 25 February 2025 ('FASOC'). The FASOC contains the following further amended group member definition:

1. This proceeding is commenced as a representative proceeding pursuant to Part 4A of the Supreme Court Act 1986 (Vic) by the plaintiffs on their behalf and on behalf of other persons who or which:

(a) acquired an interest in ordinary shares in the defendant (EML Shares) during the periods between:

(i) 19 December 2020 to 19 May 2021 (First Relevant Period); and/or

(ii) 18 August 2021 to 25 July 2022 (Second Relevant Period),

(b) suffered loss or damage by reason of the conduct of the defendant (EML); and

7 As is apparent, the original group member definition was expanded by the amended group member definition in the ASOC. The amended group member definition in the ASOC was then amended by the further amended group member definition in the FASOC to exclude from the definition those persons who acquired an interest in ordinary shares in EML only during the interregnum between the First Relevant Period and the Second Relevant Period (as those terms are defined in the FASOC).

8 The plaintiffs have applied to amend the definition of group members in the proceeding to correspond with the definition in the FASOC.

9 The premise of the plaintiffs' application is that those persons who acquired an interest in ordinary shares in EML in the interregnum period between the First Relevant Period and the Second Relevant Period (between 20 May 2021 and 17 August 2021) ('the proposed excluded group members') are currently group members for the purposes of Part 4A of the SCA. The defendant has no difficulty with the substantive outcome sought by the plaintiffs, that is, to align the group member definition for the purposes of the proceeding with the definition in the FASOC. However, the defendant contends the proposed excluded group members were never group members. That is because although the group member definition in the statement of claim was amended in the ASOC and again in the FASOC, the defendant submits those amendments were not effective to amend the definition of group members in the proceeding in accordance with Part 4A of the SCA.

10 Whether the proposed excluded group members are currently group members depends upon a consideration of the relevant provisions in Part 4A of the SCA and the steps previously taken in the proceeding.

11 For the reasons that follow, I agree with the defendants. The proposed excluded group members were never part of the group. I will order accordingly.

12 The submissions filed by the plaintiffs identify the primary order that they seek:

An order granting leave to amend the group definition in the proceeding in the form contained in paragraph 1 of the FASOC filed 24 February 2025 (and that persons who are not within that group definition are not group members).

13 The plaintiffs' written submissions state that they rely on s 33K, alternatively s 33ZF, alternatively s 33KA, alternatively s 33V of the SCA as sources of power for the orders they seek.

14 The application is supported by two affidavits made by the plaintiffs' solicitor, Mr Wertheim. Mr Wertheim has given evidence that:

Having regard to the defendant's discovery and the expert evidence filed on behalf of the plaintiffs, I formed the view that the FASOC should not contain claims in respect of the Interregnum Period. In forming this view, I had regard to the overarching obligations set out in Part 2.3 of the Civil Procedure Act 2010 (Vic). I have reviewed the confidential opinion prepared by counsel for the plaintiffs and agree with the conclusions counsel have reached for the reasons therein.

15 There have previously been orders for registration and opt out. Those orders were made following the filing of the ASOC. 398 persons who have registered are persons who purchased EML shares only during the interregnum period and therefore are proposed excluded group members.

16 Part IVA of the SCA governs the conduct of group proceedings in this Court. In Impiombato v BHP Group Ltd,[1] Beach and O'Bryan JJ made the following observation concerning Part IVA of the Federal Court of Australia Act 1976 (Cth) ('FCA'), the equivalent of Part IVA of the SCA:

Pt IVA provides its own bespoke and detailed regime and, in significant respects, the evident purpose of the part is to displace generally understood procedures.

17 While there are important distinctions between the Part IVA of the SCA and Part IVA of the FCA, including differences in language relevant to the disposition of the present application, the observations by their Honours are equally apt to describe Part IVA of the SCA.

18 The starting point for the identification of who comprises group members for the purposes of Part IVA of the SCA is s 33H. That section relevantly provides:

33H Originating process

(1) A group proceeding must be commenced by writ.

(2) The indorsement on the writ must, in addition to any other matters required by the Rules to be included -

(a) describe or otherwise identify the group members to whom the proceeding relates; and

(b) specify the nature of the claims made on behalf of the group members and the relief claimed; and

(c) specify the questions of law or fact common to the claims of the group members.

(3) In describing or otherwise identifying group members for the purposes of subsection (2), it is not necessary to name, or specify the number of, the group members.

19 Sub-section (2)(a) of s 33H is important for present purposes. It requires that the description or identification of group members is to be included in the 'indorsement on the writ'.

20 There is no definition of an 'indorsement' in the SCA. Rule 5.04 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('Rules') provides:

5.04 Indorsement of claim on writ

(1) A writ shall contain an indorsement of claim.

(2) The indorsement of claim shall be -

(a) a statement of claim; or

(b) a statement sufficient to give with reasonable particularity notice of the nature of the claim and the cause thereof and of the relief or remedy sought in the proceeding.

(3) An indorsement of claim on a writ shall constitute a statement of claim if, but only if, it is headed "Statement of Claim".

21 It is common ground that the original group member definition in the statement of claim indorsed on the writ satisfies the requirements of s 33H of the SCA.

22 It is convenient at this point to note that s 33H (1) of the FCA, which also requires the description or identification of group members in a representative proceeding, is different in its terms to s 33H of the SCA. Section 33H(1) of the FCA provides that information describing or identifying group members to whom the proceeding relates is to be included either in 'an application commencing a representative proceeding, or a document filed in support of such an application' (my emphasis).

23 Section 33K of the SCA expressly addresses an amendment to the writ so as to alter the description of group members:

33K Causes of action accruing after commencement

(1) The Court may, at any stage of a group proceeding on application made by the plaintiff, give leave to amend the writ commencing the group proceeding so as to alter the description of the group.

(2) The description of the group may be altered so as to include a person -

(a) whose cause of action accrued after the commencement of the group proceeding but before such date as the Court fixes when giving leave; and

(b) who would have been included in the group or, with the consent of the person would have been included in the group, if the cause of action had accrued before the commencement of the proceeding.

(3) The date mentioned in subsection (2)(a) may be the date on which leave is given or another date before or after that date.

(4) If the Court gives leave under subsection (1), it may also make any other orders it thinks just, including an order relating to the giving of notice to persons who, as a result of the amendment, will be included in the group and the date before which such persons may opt out of the proceeding.

24 It is unnecessary to set out the other statutory provisions upon which the plaintiffs rely in the alternative.

25 The issues that fall for consideration have arisen as a result of amendments to the statement of claim by the ASOC and FASOC. The Rules make express provision for pleading amendment.

26 Rule 36.04(1)(a) provides that any party may amend its pleading once without leave prior to the close of pleadings. Rule 36.04(1)(b) provides that at any time a party may amend with leave of the court or with the consent of all other parties. Rule 36.01 provides that the court may at any stage order that any document in the proceeding be amended or that any party have leave to amend any document in the proceeding. Rule 36.01(2) states that for the purposes of r 36.01, 'document' includes:

(a) originating process;

(b) an indorsement of claim on originating process; and

(c) a pleading.

27 The filing of the ASOC on 16 February 2023 was the filing of an amended pleading with the consent of the defendant pursuant to a similar process as that contemplated by the Rules but in accordance with an Order made on 12 October 2022 by consent.

28 The 12 October 2022 Order specified a timetable for the plaintiffs to provide a proposed amended statement of claim to the defendant for its consideration, for the defendant to advise whether it consented to the proposed amended pleading and, if so, for the filing and service of the amended pleading in the form consented to by the defendant. The time for completion of the steps referred to in the 12 October 2022 Order was later extended and the ASOC was filed.

29 As will be apparent from the summary of the 12 October 2022 Order, although the Court provided a mechanism that led to the filing of the ASOC containing the amended group member definition, the ASOC as filed was not put before the Court for its consideration. It is also the case that there was no application to amend the definition of group members and no order was made giving leave to do so. No occasion arose on 12 October 2022 or prior to 16 February 2023 for the Court to receive a proposed amended pleading and consider the amended group member definition in the ASOC or the status of those persons falling within the amended group member definition for the purposes of Part IVA of the SCA.

30 Even assuming the intention of the parties was for the 12 October 2022 Order made by consent to be a granting of leave pursuant to s 33K of the SCA, there was no application as required by the section and such an outcome was not possible as there was no way for the Court to be aware that the proposed amended pleading allowed to be filed in accordance with that Order contained an amendment to paragraph 1, the group member definition, and therefore to grant leave.

31 On 5 December 2024 a further Order was made by consent providing for opt out and registration by the group members as defined at that time in the ASOC and for the giving of notice to those persons. Once again, no occasion arose on 5 December 2024 for the Court to consider the status of those persons falling within the amended group member definition for the purposes of Part IVA of the SCA.

32 On 20 February 2025 a Case Management Conference took place before Nichols J at which both parties were represented by senior counsel. Following the CMC an Order dated 20 February 2025 was made. That Order relevantly states:

1. Subject to orders 10, 11 and 12 below, the plaintiffs be granted leave to file a further amended statement of claim in the form provided to the defendant on 21 February 2025 by 4.00pm on 24 February 2025.

33 The 20 February 2025 Order includes the following notation in Other Matters:

Despite Order 9, the plaintiffs have foreshadowed amending the writ under s 33K of the Supreme Court Act 1986 (Vic) but that application has not been made at this time and will be considered after the Court has achieved submissions ...

34 The FASOC was filed pursuant to the 20 February 2025 Order. The present application, primarily relying upon s 33K of the SCA, was initiated by the plaintiffs as anticipated by the notation in Other Matters in the 20 February 2025 Order.

35 Section 33K is the only section of the SCA that expressly addresses the alteration of the description of group members.

36 It will be observed from its terms that s 33K(1) is limited in its application. The section may only be invoked on an application being made by the plaintiff. As mentioned above, there has not previously been an application made by the plaintiffs in this case, pursuant to s 33K, whether by summons or otherwise, to amend the group member definition by amending the writ. That is, until the current application.

37 On an application being made by the plaintiff, s 33K provides that the Court may at any stage of the group proceeding give leave to the plaintiff to amend the writ so as to alter the description of the group.

38 Read in isolation the text of subsection (2) of s 33K might be thought, as the heading to the section suggests, to be a power limited to altering the description of group members by expanding the description to include a person (or persons) whose cause of action accrued after the commencement of the proceeding. However, that is not how the corresponding section in the FCA has been interpreted by the Federal Court.

39 While neither party urged upon me a construction of s 33K of the SCA contrary to the approach adopted to the proper construction of s 33K of the FCA, given that the statutory schemes are not identical, it is necessary to consider whether the approach adopted by the Federal Court to the proper construction of s 33K of the FCA is equally applicable to the proper construction of s 33K of the SCA.

40 There have been a number of decisions in the Federal Court dealing with s 33K of the FCA, including the recent Full Court decision in Impiombato to which I have already referred.

41 At first instance in Impiombato v BHP Ltd (No 5), Murphy J summarised the position concerning s 33K of the FCA by reference to earlier Federal Court authority:[2]

Although the heading of s 33K suggests that it is only concerned with an amendment to a group definition to include persons whose causes of action accrued after commencement of the proceeding, the authorities provide that the section is not so limited, and the provision empowers the Court to grant leave in respect of any amendment to the group definition once a proceeding has been commenced: Bray v F Hoffman-La Roche Ltd [2003] FCA 1505 at [25] (Merkel J); Pharm‑a‑Care Laboratories Pty Ltd v Commonwealth of Australia (No 3) [2010] FCA 361; 267 ALR 494 at [54] (Flick J). I should, though, note that those authorities date from a period when the Acts Interpretation Act 1901 (Cth) provided that section headings in an Act are not part of the Act: c.f. s 13(1) of the present Act.

42 When considering the proper construction of s 33K of the FCA in Bray v F Hoffman-La Roche Ltd[3] Merkel J noted that s 13(3) of the Acts Interpretation Act 1901 (Cth) (as it then stood) provided that a heading of a section of an Act is not to be taken to be part of the Act. His Honour said that:[4]

thus, when the heading of the section is disregarded, it is clear that s 33K(1) empowers the court to grant leave in respect of any amendment to the description of the group once a proceeding has been commenced.

The specific provisions in ss 33K(2) and (3), to a lesser extent, s 33K(4), are concerned with the particular category of alteration that involves persons whose causes of action accrued after the commencement of the representative proceeding. As was pointed out by counsel for the applicant:

"Section 33K(2) was enacted prior to the adoption (effective from 14 December 2001) of O 13 rule 2(7) of the Rules. It was obviously intended to provide the specific extension of power necessary to overcome the 'Rule in Eshelby's Case' which, at the time of the enactment of Part IVA, would otherwise have applied to prevent amendments of the type to which s 33K(2) refers. In light of the subsequent adoption of O 13 r 2(7), it is probably correct that s 33K(2) is now redundant. Once this background to s 33K(2) is understood, however, it is clear that it had a specific purpose and provides no basis for reading down the clear words of s 33K(1).

Thus, s 33K(2) and (3) appear to be a consequence of the perceived requirement for specific statutory authorisation for the inclusion of persons, as parties or represented persons, whose causes of action had arisen after the commencement of a proceeding. Accordingly, there is no reason to read s 33K(1) down to the situation contemplated by ss 33K(2), (3) and(4).

44 In Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia (No 3),[6] discussing the source of power to amend the application in s 33K of the FCA, Flick J commented, referring to Bray and to the unreported decision of Kiefel J in Falfire Pty Ltd v Roger David Stores Pty Ltd,[7] that notwithstanding the heading to the section which may otherwise have suggested a narrowing of the power otherwise conferred by s 33K(1), it has been concluded in Bray that it is clear that the sub‑section empowers the Court to grant leave in respect of any amendment to the description of the group once a proceeding has been commenced.[8]

45 Turning to s 33K of the SCA, Part IVA of the SCA was introduced by Victorian Act number 78 of 2000, well after the decisions in Bray and Pharm-a-Care and many years after the corresponding part in the FCA which was introduced in 1976. Those responsible for introducing legislation in Victoria can be taken to have known of those decisions and to have determined to proceed on the basis of them when s 33K was included in the new part of the SCA, in identical terms to the corresponding provision in the FCA.

46 In Barras v Aberdeen Steam Trawling and Fishing Co Ltd Viscount Buckmaster explained:[9]

where a word of doubtful meaning has received a clear judicial interpretation, the subsequent statute which incorporates the same word or the same phrase in a similar context, must be construed so that the word or phrase is interpreted according to the meaning that has previously been assigned to it.

47 In R (on the applications of ZH and CN) v London Borough of Newham and London Borough of Lewisham Lord Hodge said:[10]

where Parliament re-enacts a statutory provision which has been the subject of authoritative judicial interpretation, the court will readily infer that Parliament intended the re-enacted provision to bear the meaning that case law had already established.

48 It is to be noted that at the time Part IVA of the SCA was introduced, s 36(2) of the Interpretation of Legislation Act 1984 (Vic) provided that headings were not to be regarded as part of the Act. In that respect, when construing s 33K of the SCA, the same approach taken by Merkel J in Bray when construing s 33K of the FCA is required to be adopted.

49 Having considered the earlier decisions dealing with the proper construction of s 33K of the FCA and noting the timing of the introduction of Part IVA of the SCA relative to those decisions and that the same approach to the interpretation of legislation that applied in the case of s 33K of the FCA applied in the case of the SCA when Part IVA was introduced, I am in no doubt that, except where material differences arise as a result of differences elsewhere in the language of the two statues, I should adopt the same approach to the construction of s 33K of the SCA as has been adopted in the cases concerning s 33K of the FCA in the Federal Court.

50 In the full Federal Court decision in Impiombato, Beach and O'Bryan JJ referred to Murphy J's conclusions in the Impiombato first instance decision concerning the Court's power in s 33K:[11]

His Honour's conclusions with respect to the Court's power can be summarised as follows:

(a) Section 33K(1) empowers the Court to grant leave to an applicant to amend the group definition in the originating application, and s 33K(4) empowers the Court to make any other order it thinks just. Despite its heading, the power conferred by s 33K is not confined to an amendment to include persons whose cause of action accrued after the commencement of the proceeding (at [98]). There is nothing in s 33K(1) to indicate that an amendment to a group definition will only take effect from the date of amendment, and the Court has power under ss 33K(1) and (4) to order that an amendment to a group definition in an originating application takes effect from the date of commencement of the proceeding (at [100]).

(b) Section 33K does not preclude the operation of the FC Rules as a source of power to amend an originating application (at [101]). In particular, r 8.21 of the FC Rules (together with rr 1.32, 1.33, 1.34 and 1.35 to the extent necessary), made pursuant to s 59(2B) of the FCA Act, is also a source of power. In that regard, the circumstances enumerated in r 8.21(1) are not an exhaustive statement of the circumstances in which the Court may grant leave for an amendment to an originating application, and the circumstances in r 8.21(2) are not an exhaustive statement of the circumstances in which the Court may grant leave for an amendment to relate back to an earlier date, even if the application is made after the end of any relevant limitation period (at [104]).

(c) By an infelicity in the drafting of s 33K(1), the section only empowers the Court to grant leave to amend a group definition where it appears in an originating application. However, the section does not give rise to a negative implication that a group definition contained in a statement of claim cannot be amended (at [99]).

(d) The Court has power to amend a group definition contained in a statement of claim under S 33ZF which authorises the court to "make any order the Court thinks appropriate or necessary to ensure justice is done in the proceeding". Depending upon the circumstances of the case, it may be appropriate or necessary to ensure justice is done in the proceeding to grant leave to amend a group definition in a statement of claim and for the amendment to relate back to the commencement of the proceeding (at [105]).

51 The 'infelicity in the drafting' referred to in the passage quoted above concerns the fact that in the FCA s 33K only empowers the Court to grant leave to amend a group definition where the definition appears in an originating application. Section 33K of the FCA does not permit amendment to the group member definition where the definition is set out in 'a document filed in support of such an application' as is a permissible place for the group member definition to be according to s 33H(i) of the FCA.

52 This issue does not arise in Part IVA of the SCA where the identification of group members is required by s 33H(2)(a) of the SCA to be included in the indorsement on the writ. Section 33K of the SCA provides for amendment of the writ so as to alter the description of the group. There is therefore no such infelicity in the SCA.

53 The plaintiffs submitted that s 33H(2)(a) provides that rather than the writ itself, it is the 'indorsement on the writ', in this case, the original statement of claim, which must include the description of group members. Viewed in that context, the reference in s 33K(1) to leave to amend to alter the description of the group must mean by altering the description of group members in the statement of claim (in this case by amending paragraph 1 of the statement of claim). They submitted that as the definition of group members in the statement of claim was amended at the time of the ASOC so too was that amendment effective to amend the indorsement.

54 The defendant did not agree. It submitted that r 5.04(3) of the Rules refers to an indorsement of claim 'on a writ', something written on and which forms part of the document. It submitted that looking at ss 33H and 33K in light of the Rules, it is clear that what is being contemplated by s 33K is an amendment to the same document. When an ASOC is filed in a separate document from the writ there will be disconformity between the ASOC and the writ. Leaving group proceedings to one side, such disconformity is not generally of particular consequence. But even so, an amendment to the statement of claim does not constitute an amendment to the writ.

55 As earlier mentioned, there is no definition in the SCA of what constitutes an 'indorsement on the writ'. Rule 5.04 of the Rules deals with an indorsement of claim on the writ. The indorsement may be either a statement of claim in accordance with r 5.04(2)(a) and (3) or a statement sufficient to give notice of the nature of the claim in accordance with r 5.04(2)(b). Rule 36.01(2) of the Rules describes a pleading as a different document to an indorsement of claim on originating process.

56 In Jojeni Investments Pty Ltd v Mosman Municipal Council Leeming JA, with whom Macfarlan and Gleeson JJA agreed said:[12]

It is generally wrong to construe an Act by reference to delegated legislation made pursuant to it: Master Education Services Pty Ltd v Ketchell [2008] HCA 38; 236 CLR 101 at [19]. That would be for the tail to wag the dog, as French CJ observed in Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; 251 CLR 1 at [56]. The present case is an exception to the general rule. When in 1928 an amendment was made prohibiting the erection or use of a class of building described as "residential flat building", the term was undefined in the Act but was defined in the Ordinance made pursuant to the Act, Pt IV of which regulated "residential flat buildings". In those circumstances, to conclude that the identical term in the new Act bore the meaning it had been given in the pre‑existing delegated legislation is to do no more than to read the Act and the delegated legislation together so as to identify the nature of the scheme.

57 I accept as stated by Leeming JA that it is generally wrong to construe the provisions of an Act by reference to what is provided for in the Rules made pursuant to that Act. However in the case of the proper construction of Part IVA and the reference to 'indorsement', a word not otherwise defined in Part IVA, I consider the general rule does not have application and that it is appropriate to have regard to the references to indorsement in the Rules, as was the approach adopted by the Court of Appeal in Jojeni.

58 Part IVA was introduced into the SCA in 2000, by which time the Rules regarding indorsements of claim, statements of claim and pleadings and their amendment were both well established and well understood. Having regard to r 5.04 I proceed on the basis that the reference to 'indorsement on the writ' in s 33H of the SCA is reference either to the statement of claim indorsed on the writ or to what is commonly referred to as a general indorsement in accordance with r 5.04(2)(b).

59 When s 33K speaks of amending the writ to alter the description of the group it is not referring to amending the statement of claim. Contrary to the plaintiffs' submissions it is not correct that the reference in s 33K(1) to leave to amend to alter the description of the group must mean by altering the description of group members in the statement of claim. The indorsement of claim under the Rules may or may not be a statement of claim. Rule 5.04 distinguishes between a statement of claim and a general indorsement. Rule 36.01(2) dealing with amendment separately describes an indorsement of claim and a pleading. The defendant referred to Renowden v McMullin where Barwick CJ and McTiernan J said:[13]

But, while the indorsement of the writ determines the essential nature of the action, it does not define, nor necessarily form part of the definition of the issues for trial. That is done by the pleadings of which the writ does not form part. When a statement of claim has been delivered it will in its finally amended form determine the issues for trial ... Only inasmuch as the statement of claim can be said to be the initiation of specific issues for trial in the action, can it be properly said that the statement of claim supersedes the indorsement of the writ.[14]

...

To say the statement of claim may alter, modify or extend the plaintiff's claim without amendment of the indorsement does not justify the conclusion that when the statement of claim is delivered it does amend it: in particular it does not justify the conclusion that it amends the indorsement so as to make it no more than co-extensive with the assertions of the statement of claim.[15]

60 To proceed as contended for by the plaintiffs would be to equate an amendment to a statement of claim with an amendment to an indorsement of claim. It would be both inconsistent with the Rules and contrary to the distinction to which Barwick CJ and McTiernan J referred in Renowden. Amendments to pleadings are routinely made in proceedings in this and other Courts including by consent and without the need for consent under the Rules (prior to the close of pleadings). An amendment to a pleading in the ordinary course does not effect and is not the same as an amendment to a writ. The passage from Renowden to which the defendant's submissions drew attention makes that point if it was not otherwise obvious.

61 The plaintiffs submitted the 12 October 2022 Order which permitted the filing of an amended statement of claim in substitution for the indorsement (in this case the original statement of claim) must be taken to be an exercise of all the powers of the Court and to have constituted an exercise of power to grant leave to amend the writ. They submitted it was unnecessary that the Order specify that it was made in reliance on s 33K. They referred to Hingston v Westpac Banking Corporation[16] where the full Federal Court said:

the court exercised a conferred power within jurisdiction ... to set aside the composition. The orders were expressed in terms which did not recite the application of laws provision, s 73B ... However, the orders need only express the exercise of the power to set aside the composition. The power to make the relevant order either subsists within a conferred jurisdiction or not. References to the source of the power (whether correctly expressed or not) neither add to nor detract from the grant or limits of the power conferred.

62 The defendants submitted the failure by the plaintiffs to make an application pursuant to s 33K means that the 12 October 2022 Order cannot have the effect for which the plaintiffs contend.

63 I agree with the observation by Nichols J during the course of the CMC to which the defendant referred in submissions that 'without an order under s 33K the group definition is not amended'. The statement by her Honour, while made in discussion only, accurately reflects what is required by the legislative scheme. There can only be an order under s 33K if there is first an application for such an order by the plaintiff. There was no such application before the Court on 12 October 2022.

64 The plaintiffs submitted that if the Court did not exercise the power in s 33K on 12 October 2022 then it did so by the Order made on 5 December 2024. The effect of the 12 October 2022 Order was to alter the definition of the group. That the 12 October 2022 Order had that effect was then reflected in and recognised by the Order providing for registration and opt out made on 5 December 2024. They submitted that while in 2022 the Court exercised the power in s 33K, on 20 February 2025 the Court withheld the exercise of the power as noted in Other Matters.

65 The Order made on 5 December 2024 does not alter the position. This is not a case where either on 12 October 2022 or on 5 December 2024 a failure to refer to the statutory source of power to make the particular order discussed in Hingston occurred.

66 The history of the amendment made following the 12 October 2022 Order and what occurred concerning the 5 December 2024 Order shows that on neither occasion was the Court called upon to consider an amendment to the definition of group members for the purposes of the proceeding. The defendant submitted, and I agree, that it is not for the parties to enlarge or expand the definition of the group. As Beach and O'Bryan JJ said in Impiombato:[17]

The description of group members in an originating application or pleading is not a matter that the parties can freely disregard and enlarge by their conduct of the proceeding (unlike issues raised in ordinary inter partes litigation) ...

67 At no time prior to the present hearing have the plaintiffs brought an application, formal or informal, purporting to rely on s 33K for leave to amend the writ so as to alter the description of the group. Without an application pursuant to s 33K(1) there can be no leave given and therefore can be and in this case there has been no alteration of the description of the group from the description in the statement of claim indorsed on the writ in accordance with s 33H.

68 In Impiombato, Beach and O'Bryan JJ said:[18]

Relevantly, amendments to the description of group members are governed by s 33K, with a supplementary source of power in s 33ZF if the description is contained in a pleading.

69 There is no occasion under the SCA to consider a supplementary source of power to s 33K of the SCA as is the case under the corresponding provision in the FCA. That is because the gap which exists in the FCA because the power in s 33K is only applicable under that legislation to one of the two alternative documents in which the description of group members might be included does not exist under the corresponding Victorian legislation.

70 The defendant submitted the Court need only make an order under s 33K of the SCA, specified to take effect on 16 February 2023. To backdate the definition of group members in the FASOC so that it takes effect from the date of the ASOC, 16 February 2023, is expressly countenanced by s 33K(3). It is appropriate to make an order effective 16 February 2023 given that those persons who fall within the First Relevant Period or the Second Relevant Period in the FASOC also come within the amended group member definition in the ASOC.

71 As submitted by the defendant, the appropriate course is to regularise what has previously taken place in this proceeding. Because the notices that were sent out by consent of the parties following the 5 December 2024 orders were sent to persons who are not and never have been group members and because 398 persons who registered are persons who purchased EML shares only during the interregnum period and who, as I have found, are persons who are not and never were group members, it is both necessary and appropriate that those persons are given notice of the true position.

72 That is most conveniently done by making the orders proposed by the defendant and by making provision for a notice to the 398 persons who have registered as group members in reliance on the notice sent following the orders on 5 December 2024 but who are not and never have been group members informing them of the position.

73 I direct the parties to confer and to provide a proposed form of order that gives effect to these reasons and which includes a draft notice to be sent to the 398 persons who have registered and are not and never were group members.

74 A draft form of order and notice should be provided to my Chambers by no later than 4:00pm on 29 April 2025.

[1] [2025] FCAFC 9, 18 ('Impiombato').

[2] Impiombato v BHP Ltd (No 5) [2024] FCA 591 [98] ('Impiombato first instance decision').

[3] [2003] FCA 1505 ('Bray').

[4] Bray v F Hoffman-La Roche Ltd [2003] FCA 1505 [25].

[5] Bray v F Hoffman-La Roche Ltd [2003] FCA 1505 [26].

[6] [2010] FCA 361, (2010) 267 ALR 494 ('Pharm-a-Care').

[7] Unreported, Federal Court of Australia, 25 September 1996.

[8] Bray v F Hoffman-La Roche Ltd [2003] FCA 1505 [54].

[9] [1933] UKHL 3; [1933] AC 402, 411.

[10] [2014] UK SC 62, [2015] 1 All ER 783, 804.

[11] Impiombato v BHP Group Ltd [2025] FCAFC 9 [143].

[12] [2015] NSWCA 147, (2015) 89 NSWLR 760 [40] ('Jojeni').

[13] [1970] HCA 24, (1970) 123 CLR 584, 596 ('Renowden').

[14] [1970] HCA 24; (1970) 123 CLR 584, 596.

[15] [1970] HCA 24; (1970) 123 CLR 584 at 602. See also per Owen J (with whom the other members of the majority agreed): at 608-613.

[16] [2012] FCAFC 41, (2012) 200 FCR 493 [71] ('Hingston').

[17] Impiombato v BHP Group Ltd [2025] FCAFC 9 [54].

[18] Impiombato v BHP Group Ltd [2025] FCAFC 9 [181].