17 JPM contends, however, that PASL is a more appropriate party as representative of the relevant class. JPM makes several points in support of that contention.
18 JPM points out that it is PASL, rather than JPM itself, that has a commercial and financial interest in the outcome of the proceedings; also that PASL has canvassed direct with the plaintiff objections and concerns it has about events preceding the actions of 28 November 2008 and events associated with those actions. PASL, which has the commercial and financial interest, has seen fit to pursue in correspondence with the plaintiff arguments relevant to that interest. The same course should be followed in the proceedings, says JPM: if PASL has manufactured the bullets, it is better that PASL be left to fire them itself rather than to load them into the magazine of a trigger-shy JPM.
19 JPM further submits that, while PASL as the beneficial owner of units registered in JPM's name is clearly "interested in or affected by the proceedings" (to quote the words in rule 7.6(c)), the same cannot be said of JPM itself. JPM, as a bare trustee, considers itself to have no real or separate interest in the proceedings - its interest is no more or less than a reflection of the interests of the persons for whom it holds units upon a bare trust.
20 This raises another issue. JPM holds units for more than one underlying owner. A redemption request was made in the relevant period in respect of only part of the units held by JPM, being the units it held for PASL. JPM is thus in a position where its pursuit of the interests of PASL in this litigation might be contrary to the interests of other persons for whom JPM held units at the time and continues to hold units. JPM thus has a divided allegiance that will in all probability impel it to seek judicial advice in relation to executing the role of representing the interests of one group of underlying unit owners only.
21 The points made by JPM have substance. The real protagonist is PASL and the evidence makes it clear that PASL has made forceful and reasoned complaints to the plaintiff about the actions of November and December 2008 concerning suspension of redemptions. Those complaints may be taken to reflect the interests of all persons who are the beneficial owners of units sought to be redeemed in the relevant period, including beneficial owners who are also registered holders. JPM, by contrast, has no financial interest in the outcome of the controversy. And, having regard to observations of Gummow ACJ, Kirby J, Hayne J and Heydon J in Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 82 ALJR 1425, it is, I think, virtually certain that JPM would wish to seek judicial advice about its approach to the representative role (as in the analogous case of Re Avanteos Investments Ltd [2008] NSWSC 370). After referring to the court's power under s 85 of the Trustee Act 1925 to excuse a breach of trust after the event and the power under s 63 to give judicial advice to trustees, their Honours said (at [36]):
"The legislative scheme, then, is that it is desirable that trustees in doubt as to a course of action should not proceed with it and seek relief under s 85 afterwards, but rather seek s 63 advice first. That is because one of the things which a trustee invoking s 85 requires to be excused from is failure to seek s 63 advice." [emphasis added]
22 If PASL were the representative defendant, the possibility that time and expense would be devoted to an application for judicial advice would, it seems, be avoided and opposition to the plaintiff would be offered by a real protagonist, having an interest apparently coinciding with that of each other person (whether or not a registered holder) beneficially owning units in respect of which redemption requests were made within the period.
23 An analogy of sorts might be drawn with a case where there has been no grant of probate or administration but it is necessary for the estate to defend proceedings. Speaking of that situation, Hutley JA said in Government Insurance Office (NSW) v Johnson [1981] 2 NSWLR 617 at 623:
"The basic principle which should govern the appointment of somebody who does not do so in fact and law to represent the estate is that there should be someone with a real interest before the Court to contest the liability which it is sought to visit on the estate. Discussing 15 and 16 Vict c 86 s 44, the remote ancestor of the present rule, Romilly MR in Gibson v Wills (1856) 21 Beav 620; 52 ER 999 said:
'It is clear that there is a hostile question for discussion, and no representation having been taken out to either of the deceased daughters, the Plaintiffs ask the Court to appoint a nominee of their own to represent their adversaries. If appointed, he may make a feeble defence, and a decree may be obtained which will be binding on
those absent. The object of the statute was this: Where you have real litigating parties before the Court, but it happens that one of the class interested is not represented, then, if the Court sees that there are other persons present who bona fide represent the interest of those absent, it may allow that interest to be represented; but it will not allow the whole adverse interest to be represented.'
See also Fowler v Bayldon (1853) 9 Hare App II 78; 68 ER 802."
24 Hutley JA added (at 624):
"A wholly uninterested party should never represent an estate against which an adverse claim is being made."
25 The analogy with the situation before the Court of Appeal in that case is by no means complete, in that there is, in the present case, someone to "represent the estate": JPM, as bare trustee, stands in a legal position to do so. Also, JPM cannot, strictly speaking, be regarded as "wholly uninterested", since its duties as a bare trustee require it to uphold the trust. But in a practical sense, the position is one in which PASL is a "real litigating party", so far as concerns the interests of the beneficial owners (whether or not also registered holders) of units in respect of which redemption requests were made. And where a registered holder is not also the beneficial owner, it cannot, it seems to me, have any different or other interest.
26 Section 56 of the Civil Procedure Act 2005 identifies, as the "overriding purpose" of that Act and the rules of court, the facilitation of "the just, quick and cheap resolution of the real issues in the proceedings". In a case similar to this that arose last year, Hammerschlag J took into account the saving of costs as a factor in deciding among reluctant and non-consenting candidates for appointment as a representative defendant: see Basis Capital Funds Management Ltd v BT Portfolio Services Ltd [2008] NSWSC 555; (2008) 66 ACSR 580 at [39].