J Wisbey & Associates Pty Ltd v UBS AG [2021] FCA 36 | Case summary

Federal Court of Australia|2021-01-29|Before: Mr J, Beach J

The applicant personally 102 The respondents say that the PASOC does not plead facts capable of establishing that the applicant satisfies the definition for group membership. They say that only examples of FX Instruments have been referred to concerning the applicant which are well under the AUD minimum threshold for group membership. Now that may be true. But in my view the pleas in [2(c) and (d)] are adequate together with the particulars which are described as examples in any event, with further particulars to be given. Moreover, the evidence before me establishes that the applicant has bought and sold during the relevant period Affected Currency Pairs with a total value of around AUD1.7 million, which is well above the Minimum Transaction Volume. If necessary, further particulars can be given.

THE MAIN DEFICIENCY - A MULTITUDE OF POSSIBILITIES 103 The respondents variously submit that the PASOC fails to disclose a reasonable cause of action, is likely to cause prejudice, embarrassment or delay and is otherwise defective. 104 It is said that the pleading contains a "forest of forensic contingencies" presenting "hundreds if not thousands, of alternative and cumulative combinations of allegations" with the effect that it is not possible to discern the case that is being alleged. Accordingly, it is said that the PASOC does not give fair notice of the case the respondents will face at trial. It is said to be unclear from the PASOC how many contracts, arrangements or understandings (CAUs) are alleged or between which banks or persons each CAU is alleged to have been made. 105 First, it is said that the PASOC does not identify the number or identity of parties said to have made each CAU. Rather, each respondent is alleged to have made each CAU "with each, alternatively one or more, of the other Respondents, and/or one or more of the Other Cartel Participants". Together, the respondents and Other Cartel Participants comprise numerous corporate groups or banks. 106 Second and relatedly, it is said to be unclear from the PASOC which, if any, of the non-parties that are defined as the Other Cartel Participants are alleged by the applicant to have been counterparties to a CAU involving them and the extent to which that CAU is alleged to have been implemented. The deficiencies in the PASOC mean that the respondents cannot give sensible consideration to possible rights of contribution they may have against third parties. 107 Third, it is said to be unclear when the applicant will contend that each CAU was made. The PASOC alleges that each CAU was made by no later than the start of, alternatively during, the relevant period, being 1 January 2008 to 15 October 2013; this is an unspecified point of time in an unspecified period that may span well over six years. 108 Fourth, it is said that most of the particulars are inadmissible (e.g. "findings" of regulators and admissions of other respondents) or not probative of a CAU (e.g. the volume of communications in a chat group). Further, it is said that although some particular chat room communications are referred to in the schedules of particulars to the PASOC, it is not clear from the pleading what they are said to establish (i.e. how many CAUs, between what parties and at what point in time) or how (i.e. by what chat or combination of chats each CAU was made and by what words). It is said that their relationship with the pleaded CAU is not apparent. 109 Fifth and relatedly, it is said that the particulars to the alleged CAUs and to the alleged "giving effect to" of those CAUs are incoherent and do not support the allegations in the pleading. There is disconformity and tension between the conduct that is particularised and the alleged CAUs. In particular, whilst the particulars allege facts and circumstances, such as individual communications in individual chat rooms, that could conceivably found an allegation that on a particular occasion a particular group of representatives fixed or influenced the rate for a particular set of transactions, the PASOC pleads umbrella CAUs, such as an arrangement to engage in chat room communications to, for example, set rates. It is said that there are no particulars to support such umbrella CAUs. 110 Sixth, it is said that the PASOC alleges matters that do not constitute contraventions of the Trade Practices Act 1974 (Cth) (TPA) or the Competition and Consumer Act 2010 (Cth) (CCA) in respect of the relevant cartel provisions applicable at various times. Challenges are made to the adequacy of the pleading concerning, inter-alia, market and competition questions. 111 Seventh, it is said that the pleading of the alleged loss and damage fails to articulate any coherent theory of loss or damage, or identify a causative link between any particular conduct of the respondents and any loss or damage allegedly suffered by the applicant or group members. 112 Eighth and more generally, the respondents point out that the applicant has now had the benefit of more than 12 months and the production of 495,869 documents from the respondents to formulate a pleading that coherently articulates its claim. It is said that the applicant has been provided with a large and detailed body of discovered documents and many months within which to work on its pleading, and it has had an ample opportunity to put its best pleading forward. But notwithstanding that advantage, the respondents say that the PASOC contains major deficiencies. 113 Let me begin with some uncontroversial principles before descending into the detail.

Principles applicable to amendment application 114 The applicant has the onus of persuading me that the amendments embodied in the PASOC ought to be made. 115 And as I have said, leave to replead should not be granted if the proposed pleading or a significant part thereof: (a) is unintelligible or vague in material respects; (b) does not fulfil the basic function of identifying the issues and disclosing a reasonably arguable cause(s) of action; (c) is too general with an absence of sufficient particularity; or (d) is otherwise in a form that may prejudice, embarrass or delay the fair trial of the proceeding. 116 Now it is for the applicant to clearly identify the case which it seeks to make, and this may require facts or characterisations of facts to be pleaded in the alternative. But it does not extend to planting a forest of forensic contingencies and waiting until final addresses to map a path through it. 117 In Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486, the plurality said (at [27]): The task of the pleader is to allege the facts said to constitute a cause of action or causes of action supporting claims for relief. Sometimes that task may require facts or characterisations of facts to be pleaded in the alternative. It does not extend to planting a forest of forensic contingencies and waiting until final address or perhaps even an appeal hearing to map a path through it. In this case, there were hundreds, if not thousands, of alternative and cumulative combinations of allegations. As Keane CJ observed in his judgment in the Full Court: The presentation of a range of alternative arguments is not apt to aid comprehension or coherence of analysis and exposition; indeed, this approach may distract attention from the central issues. 118 Let me say something about cartel cases. 119 First, in a cartel case, the alleged contract, arrangement or understanding may be analogous to a conspiracy plea. And in such a context, the case may be substantially based on inferences reasonably available to be drawn from the overt acts of one or more parties done in pursuance of such an alleged contract, arrangement or understanding. It seems to me that parts of the applicant's case as reflected in the PASOC rely upon such a structure. But in such a case which is not to be proved by direct evidence, particulars must be provided of the overt acts relied upon to justify the inference that the alleged CAU was made. 120 Second, it is not necessary for the applicant to identify when precisely the alleged CAU was made or reached. 121 Third, I accept that in a cartel case the applicant's pleading must be sufficiently clear to enable a respondent to determine whether a contribution claim should be made against another respondent or a third party, even if the boundaries and content of such a contribution claim cannot be precisely determined because of generality or imprecision in the applicant's pleading. Now I accept that the required precision may not crystallise until later. But if because of a limitation period there is a difficulty, then a respondent may need to preserve its position by filing a cross-claim at a time when the applicant's pleading is imprecise. 122 Fourth, it is convenient to also say something further at this point concerning the alleged contraventions the subject of the causes of action and the relevant elements which the applicant's pleading must address. 123 The applicant's case is based upon alleged contraventions of: (a) ss 45(2)(a)(ii) and 45(2)(b)(ii) of the TPA, by operation of s 45A, for the period prior to 24 July 2009; and (b) ss 44ZZRJ and 44ZZRK of the TPA and the CCA (as applicable), together with s 44ZZRD, on and following that date. 124 The TPA and the CCA require the applicant to identify both a CAU and a provision of that CAU which has certain stipulated features. 125 In terms of a CAU the following propositions are not in doubt: (a) to the extent that a contract is alleged, noting that the applicant has adopted the extra-statutory concept of an "agreement", that word takes on its ordinary common law meaning; (b) whilst the words "arrangement" and "understanding" connote a less formal or precise dealing than a "contract" they require consensus or a meeting of minds; (c) a party to an arrangement or understanding must assume an obligation or give an assurance or undertaking that it will act in a certain way; (d) it is sufficient if the obligation, assurance or undertaking is moral in nature or based on honour; (e) an independently held belief, hope or non-normative expectation will be insufficient as I said in Australian Competition and Consumer Commission v Olex Australia Pty Ltd [2017] FCA 222 at [477]; and (f) an arrangement will generally require express negotiation or at least communication between the parties; and whilst an understanding need not be overt, in most cases there will be overt or express action of some kind. 126 In Olex, I said (at [477] to [480]): First, an arrangement or understanding is something less than a binding contract or agreement (Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (2007) 160 FCR 321 at [26] to [30] per Gray J and Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (2004) 141 FCR 183 at [54] per Merkel J). The concept of an understanding is a "broad and flexible" concept (Norcast S.ár.L v Bradken Ltd (No 2) (2013) 219 FCR 14 at [263] per Gordon J; ACCC v Leahy Petroleum Pty Ltd (2004) 141 FCR 183 at [54] per Merkel J). An "understanding" may be a looser concept than an "arrangement" (ACCC v Leahy Petroleum Pty Ltd (2007) 160 FCR 321 at [27]). An arrangement or understanding requires a consensus or a "meeting of the minds of the parties" under which parties assume obligations or give assurances or undertakings that they will act in a particular way. The "meeting of the minds" will usually embody a mutual obligation between the parties, but it is not required (Norcast v Bradken at [263]). Reciprocity of obligations is common but unnecessary. To establish such an arrangement or understanding it is sufficient that "the minds of the parties are at one that a proposed transaction between them proceeds on the basis of the maintenance of a particular state of affairs or the adoption of a particular course of conduct" (Top Performance Motors Pty Ltd v Ira Berk (Qld) Pty Ltd (1975) 24 FLR 286 at 291 per Smithers J). It is sufficient that an arrangement or understanding creates moral obligations or obligations binding in honour only (Australian Competition and Consumer Commission v CC (NSW) Pty Ltd (No 8) (1999) 92 FCR 375 at [136]-[137]). An arrangement may be informal as well as unenforceable, with the parties free to withdraw from it or to act inconsistently with it notwithstanding their adoption of it (Norcast v Bradken at [263]). A mere expectation in a non-normative sense or a hope that something might be done or happen or that a party will act in a particular way is not of itself sufficient to found an arrangement or understanding (Trade Practices Commission v Email Ltd (1980) 43 FLR 383 at 385; ACCC v CC (NSW) Pty Ltd (No 8) at [141]). There will be no understanding where one party decides unilaterally to act in a particular way in response to a pricing manoeuvre by a competitor. Second, as to the question of proof, an inference that an arrangement or understanding existed may be drawn from circumstantial evidence that the conduct of the parties exhibits "a concurrence of time, character, direction and result" (R v Associated Northern Collieries (1911) 14 CLR 387 at 400). Where competitors meet without any apparent legitimate purpose, then this may assist in proving the existence of an arrangement or understanding. Further, the presence of parallel conduct may be evidence of an arrangement or understanding, but it is not sufficient in and of itself to reach a conclusion one way or the other. Further, economically irrational behaviour can be indicative of the presence of a cartel. Further, the existence of a motive is a matter that can be taken into account in assessing whether an arrangement or understanding was entered into by parties. A finding may be made in the absence of direct evidence. All that is necessary is that the more probable inference from the circumstances that sufficiently appear by evidence, left unexplained, justifies the conclusion. "More probable" means no more than that upon the balance of probabilities, such an inference has a greater degree of likelihood. A party who relies on circumstantial evidence must show that the circumstances raise the more probable inference in favour of what is alleged. It is not sufficient that the circumstances give rise to conflicting inferences of an equal degree of probability or plausibility or that the choice between them can only be made by conjecture. I accept though that the process of inference may involve an intuitive element that is not susceptible to detailed support or explanation. There is a distinction between inference and conjecture even if the reasoning process occurs on a continuum in which there is no bright line division (Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at [84] to [88]). A conjecture, even though plausible, is no more than a guess, whereas an inference is a deduction from the evidence. If the deduction is reasonable, the inference may rise to legal proof (Jones v Great Western Railway Co (1931) 144 LT 194 at 202). But there must be objective facts from which the inference could be drawn, otherwise what is left is mere speculation or conjecture (Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 169 and 170 per Lord Wright). 127 For the pre-24 July 2009 TPA claims, which are pleaded as contraventions of s 45(2), a corporation must not make or arrive at a CAU that contains a provision that has the purpose, effect or likely effect of substantially lessening competition (s 45(2)(a)(ii)) or "give effect to" such a provision of a CAU (45(2)(b)(ii)). A provision in relation to prices will be deemed to have the relevant purpose, effect or likely effect of substantially lessening competition if it has the purpose, effect or likely effect of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for goods or services supplied or acquired or to be supplied or acquired by the parties to the CAU, or by any related bodies corporate, in competition with each other (s 45A(1)). 128 For the TPA and CCA claims (as applicable) on and from 24 July 2009, a corporation must not make or arrive at a CAU that contains a "cartel provision" (s 44ZZRJ) or "give effect to" a cartel provision of a CAU (s 44ZZRK). A provision of a CAU will be a cartel provision if it satisfies either of the "purpose/effect condition" or the "purpose condition" (s 44ZZRD(a)) together with the "competition condition" (s 44ZZRD(b)). Relevantly, a provision of a CAU will satisfy the "purpose/effect" condition if it, inter-alia, has the purpose, effect, or likely effect of directly or indirectly "fixing, controlling or maintaining … or … providing for the fixing, controlling or maintaining of … the price for … goods or services supplied, or likely to be supplied, by any or all of the parties to the contract arrangement or understanding" (s 44ZZRD(2)(a), (b) and (c)). The competition condition will be satisfied if at least two of the parties to the CAU are, are likely to be, or would be or would be likely to be but for the CAU, in competition with each other in relation to the supply or likely supply of the relevant goods or services (s 44ZZRD(4)). 129 Let me say something about "provisions" or "cartel provisions" in relation to prices and the phrase "fixing, controlling or maintaining". In circumstances where the allegations advanced by the applicant proceed by reference to s 45A(1), in respect of the pre-24 July 2009 claims, and the "purpose/effect condition" in s 44ZZRD(2), in respect of the claims on and from 24 July 2009, the relevant provision must have the purpose, effect or likely effect of "fixing, controlling or maintaining" or "providing for the fixing, controlling or maintaining" the price for the goods or services that are the subject of the CAU. 130 In Olex, I said (at [506] to [507]): The language "fixing, controlling or maintaining" in section 44ZZRD(2) is drawn from the predecessor prohibition of price fixing contained in section 45A (see the said explanatory memorandum at [1.26]). The word "fix" has its ordinary dictionary meaning: to make fast, firm or stable (Apco Service Stations Pty Ltd v Australian Competition and Consumer Commission (2005) 159 FCR 452 at [44] per Heerey, Hely and Gyles JJ). "Control" means "to exercise restraint or direction over" or "to exercise restraint or direction upon the free action of" a person or thing. An arrangement or understanding controls price "if it restrains a freedom that would otherwise exist as to a price to be charged" (ACCC v CC (No 8) at [168]; Australian Competition and Consumer Commission v TF Woollam & Son Pty Ltd (2011) 196 FCR 212 at [82] to [83] per Logan J). I do not need to address the word "maintain" in the present context, except to say that the word has a similar connotation to the word "fix". 131 Let me now deal with the respondents' main criticisms.

Multiplicity of alleged contracts, arrangements and understandings 132 As the respondents point out, the PASOC alleges a myriad of alternative and cumulative CAUs with various alternative and cumulative elements that were entered into and given effect.

The umbrella understanding 133 If one begins with the "Information Sharing and Trade Co-ordination Understanding(s)", the multiplicity of allegations can be observed by analysing [21] of the PASOC, which was usefully broken down by Mr Moore SC for NatWest and also by counsel for the other parties. 134 First, there are alternatives as to the time at which the CAU or CAUs were formed. The applicant's primary case is that the conduct in [21(a)] and [21(b)] occurred before 1 January 2008, but its alternative case is that it occurred at some undefined and indeterminate point or points during the five years and 10 months from 1 January 2008 to 15 October 2013. Further, on the assumption that there are multiple umbrella CAUs, [21(a)] appears to allow that some might have been made at any time before 1 January 2008 and others at any time in the nearly six-year period between that date and 15 October 2013. 135 Second, there are alternatives as to the identity of the alleged wrongdoers. The applicant's primary case is that the CAU or CAUs were made by each of the five respondents, but it also puts its case cumulatively and alternatively with respect to three further classes of persons, being unidentified and indeterminate employees, agents and related bodies corporate of the respondents ("and/or by their employees or agents, and/or by related bodies corporate"). It is said that the failure to identify these people means that each respondent cannot know how the case against them is being put, including not being able to ascertain whether the alleged agents are in fact agents. As Mr Matthew Darke SC for the third respondent (Citibank) has pointed out, Citibank has many thousands of employees and dozens of related bodies corporate globally. This is likely to be the case for some of the other respondents. 136 Further, [21(a)] pleads that each respondent made an umbrella understanding with "each, alternatively one or more" of the four other respondents "and/or one or more of the Other Cartel Participants", of which there are 23. So, as the respondents submitted, what seems to be alleged is possibly one umbrella understanding, involving all five respondents, and none, one or more Other Cartel Participants. Another possibility is that what is pleaded is as many as five separate umbrella understandings, with each respondent entering into its own umbrella understanding with one or more Other Cartel Participants, but none of the other respondents. Yet another possibility is that what is pleaded is some intermediate number of umbrella agreements, one or some involving only one respondent and one or more Other Cartel Participants, and another or others involving more than one respondent and none, one or more than one Other Cartel Participants. 137 Third, it is apparent that the umbrella understandings could be with respect to the same or different "Affected Currency Pairs". So, for example, [21(a)] appears to contemplate that, if each respondent entered into its own umbrella understanding, involving one or more Other Cartel Participants but no other respondents, then each umbrella understanding could have been in relation to a different Affected Currency Pair or a different combination of Affected Currency Pairs. Further, the umbrella understandings might be to do the same or different things with respect to their Affected Currency Pairs. So, for example, one umbrella understanding might be to share information with respect to its Affected Currency Pairs. Another might be to co-ordinate trading in FX Instruments with respect to its Affected Currency Pairs. And a third might be to co-ordinate the Spreads with respect to its Affected Currency Pairs. Other umbrella understandings might be to do some combination of these things. 138 The applicant alleges that the trade in FX Instruments which provided the occasion for information sharing was with respect to one or more of a range of Affected Currency Pairs, which are comprised of six primary currencies each of which may be paired with one or more of 28 other secondary currencies. There are a total of 153 possible unique currency pairings that could constitute an "Affected Currency Pair" ((6 x 5) / (2!) + (6 x 23)) and on the pleading these 153 pairings are to be arranged into groups of "one or more" Affected Currency Pairs, being groups of between one and 153, which can be arranged in an enormous number of ways. Using undergraduate combinatorics, a figure of 1.1418 x 1046 has been calculated. 139 Fourth, there are alternatives as to the subject of the obligations allegedly imposed by the provisions or the CAU. The applicant alleges that the subject of the provisions or the CAU was the sharing of information but it cumulatively and alternatively alleges that the subject of the provisions or the CAU was also further trade co-ordination matters, themselves put with a number of sub-alternatives. 140 Further, there are further alternatives in the information sharing aspect of the allegation in [21(a)] as to the nature of the information that was alleged to have been shared. The applicant alleges that the information that was the subject of the provision or that the effect of the CAU included information that related to trade volumes, and it cumulatively and alternatively alleges that the information related to trade strategy. 141 Further, there are alternatives in the trade co-ordination aspect of the allegation in [21(a)] as to the nature of the alleged coordinated trading. The applicant alleges that the co-ordination trading was in FX Instruments, as to which it is said that there is a further web of alternatives. 142 Further, there are alternatives as to the nature of the benefit or benefits that are alleged to have accrued to various persons. The applicant pleads four categories of alleged benefit cumulatively and alternatively, each of which picks up further alternatives by the incorporation of the defined term "Affected Currency Pairs". Further, as a result of the use of the word "including" the pleading is again not definitive. 143 Fifth, there are alternatives as to the form of the singular CAU in [21(a)]. The applicant first alleges that what was made was an "agreement", but it also alleges an arrangement and an understanding; I note that the statutory provisions refer to "contract" rather than "agreement", but nothing turns on this. 144 Sixth, there are alternatives as to the nature of the operative element of the singular CAU in [21(a)]. The applicant's primary case is that the CAUs contained provisions, but it contends in the alternative (by the use of "or") that the CAUs were to a particular "effect" ("that each of them would share with one or more of the others information"). The appropriateness of such a plea is questionable. The relevant statutory provisions concern a CAU and a provision of a CAU with a relevant purpose or effect, rather than a CAU "to the effect"; this infelicity will need, in my view, to be rectified. 145 Seventh, as between [21(a)] and [21(b)] there are alternatives as to the number of the agreements, arrangements or understandings that are alleged to have been formed. The applicant's primary case is that each of the multiplicity of matters discussed formed part of a single agreement, arrangement or understanding containing whatever permutation of parties and whatever permutation of subject matter comes out of the very large number of alternatives. But in [21(b)] it then also contends in the alternative that there were an indeterminate number ("a series") of other agreements, arrangements or understandings, each potentially bearing a different permutation of the various alternative characteristics outlined above. On this point alone, so the respondents say, the pleading gives rise to indeterminacy. It is said that having regard to the particulars provided, each exchange in a chat room could itself be said to found an arrangement, or could combine with any number of alternative communications to form any number of alternative arrangements, or could be said to evidence any number of alternative arrangements, which could be two, twenty thousand or twenty million. So, [21] does not identify its subject matter. 146 As Mr Darke SC correctly submitted, the problems are magnified by the series of understandings pleaded in [21(b)]. Each alleged understanding in this so-called "series" encompasses the same array of possibilities with respect to its parties, its Affected Currency Pairs, what it was an understanding to do, and when and how it was made, as the alleged umbrella understandings in [21(a)]. The number of alleged understandings in the series in [21(b)] is virtually unlimited. For example, one of the many possibilities that [21(b)] encompasses is that there were separate understandings (1) made by each respondent, or some unidentified employee, agent or related body corporate of each respondent, (2) with one or more Other Cartel Participants (but no other respondents), (3) with respect to different Affected Currency Pairs, (4) some being understandings to share information, others to coordinate trading, and still others to coordinate Spreads or to do a combination of these things, (5) on each day of the relevant period. 147 Further, it is said that the relationship between the umbrella understandings pleaded in [21(a)] and the series of understandings pleaded in [21(b)] is unclear. In particular, it is not clear whether the applicant is alleging that each respondent was a party to either an umbrella understanding or a series of understandings, or that a respondent might have been a party to both an umbrella understanding and one or more understandings in the series. The inclusion of the word "or" at the end of [21(a)] suggests the former, but in other parts of the PASOC "alternatively" is used to indicate more explicitly allegations that are made in the alternative. Moreover, if [21(a)] and [21(b)] are not alternatives, then given the breadth of possibilities each covers, it is uncertain how the understandings to which the respondents are alleged to have been a party under each limb differ. 148 Further, it is said that the particulars to [21(b)] do not clarify that plea, but rather add to the uncertainty and confusion it creates. In that regard, it is said to be unclear whether the applicant relies on each of the individual communications it has particularised as supporting only the existence of a single understanding corresponding as to parties, timing and content with the relevant communication, or whether the applicant relies on each individual communication as supporting the existence of additional alleged understandings with different parties, timing and content and, if so, on what basis it does that. 149 Generally, the respondents say that the effect of the applicant pleading its case in this way is to substantially increase, in an impermissibly vague and unspecified way, the number and variety of understandings the respondents are alleged to have made. It is said to be impossible for the respondents to know from such a pleading what is the case they have to meet in relation to the alleged series of "Information Sharing and Trade Co-Ordination Understandings". 150 Now the respondents have pointed out that in Forrest the plurality were critical of the pleading approach taken there of advancing a series of alternative claims, concluding that "it is greatly to be doubted that it will ever be appropriate to pile, one on top of the other, as many alternative allegations as were made in this case" (at [25] and [26] per the plurality). The plurality summarised the position at [27], which I have already set out. 151 Generally, the respondents say that the PASOC is in a more egregious form than the pleading criticised in Forrest. They contend that the vagaries and permutations in the allegations made in [21] and also the following [23], [25], [27], [29] and [31], which I will discuss in a moment, mean that the pleading is embarrassing. Now in my view embarrassment is a broad concept intended to capture a variety of pleading failures. But a pleading is embarrassing where it is unintelligible or too general or where it contains inconsistent or irrelevant allegations. Further, where a pleading is embarrassing, I accept that the provision of particulars may not necessarily cure the problem. 152 Let me now say something briefly about the respondents' submissions concerning the other CAUs that are pleaded at [23] and following.

The other CAUs 153 The respondents say that each of the five categories of alleged CAUs which follow the "Information Sharing and Trade Co-Ordination Understanding(s)" suffer from the same vices as [21], and indeed multiply the problem. 154 In this respect the respondents say that the applicant adopts the same approach in relation to the understandings pleaded in [23] (the "Spread Understanding or Understanding(s)"), [25] (the "WMR Fix Understanding(s)"), [27] (the "ECB Fix Understanding(s)"), [29] (the "Stop Loss Orders Understanding(s)") and [31] (the "Concealment Understanding(s)"). It is said that each follows a similar pleading structure that gives rise to a vast network of alternatives in the sense that: (a) each adopts alternatives as to time of the kind referred to above; (b) each adopts alternatives as to the identities of the alleged wrongdoers of the kind referred to above; (c) each adopts alternatives as to the form of the CAU of the kind referred to above; (d) each adopts alternatives as to the parties to the alleged singular CAU of the kind referred to above; (e) each adopts alternatives as to the nature of the operative element of the CAU of the kind referred to above; (f) each adopts alternatives as to the number of alleged CAUs of the kind referred to above; and (g) with the exception of the "Concealment Understanding(s)", each adopts alternatives by virtue of the defined term "Affected Currency Pairs" of the kind referred to above. 155 Accordingly, the respondents say that the various alternative CAUs are incoherent and do not provide the respondents with sufficient notice of the case that they are required to meet.

Analysis 156 Let me say at the outset that I am largely in agreement with the respondents concerning their principal criticisms, particularly concerning [21]. 157 Now the applicant has sought to justify its position in various respects. But I am unconvinced. 158 The applicant says that the adequacy of the PASOC must be flexibly assessed in light of the disadvantage faced by it in alleging cartel conduct which is the product of clandestine and secret arrangements known only to the respondents. Now I would accept that information asymmetry is a recognised feature of many Pt IVA proceedings, and not just cartel cases. And I have no difficulty in taking it into account in the assessment of pleading adequacy involving the evolution of different versions of a pleading before, during and after discovery; see what I said in Webster (Trustee) v Murray Goulburn Co-op Co Ltd (No 2) [2017] FCA 1260 at [6] and [62] to [65], although my observations there were in the context of pleas of knowledge or "ought to have known" type allegations. 159 Now on the applicant's case it would seem that the CAUs were made covertly. Further, although the chat room communications discovered to the applicant allow for inferences to be drawn as to the existence of the CAUs, it would seem that on the applicant's case those CAUs were inherently likely to have been formed in a clandestine manner and were concealed during the relevant period, as is alleged by the "Concealment Understanding(s)". Accordingly, I would accept that the applicant here faces the usual difficulties of proof that ordinarily attend establishing, by inference, allegations of cartel conduct. 160 Further, I also accept that this is not a case in which the existence of various foreign proceedings covering similar subject matter cures the informational asymmetry. Now some of the other foreign proceedings that I referred to earlier in the context of the s 33H(1)(a) question confirm the ubiquitous and enduring nature of conduct which may be generally described as anti-competitive or cartel-like, and suggest the existence of detailed evidence of various categories of such conduct. But as the applicant points out, those proceedings reflect the various foreign causes of action, procedural vehicles and idiosyncratic pleading practices of those foreign jurisdictions. They do not provide a suitable architecture for claims under Australian law and do not take into account local pleading and forensic requirements. 161 Now leveraging off this asymmetry and the so-called clandestine nature of the respondents' conduct, the applicant says that the pleas of the CAUs sufficiently articulate the case against each of the respondents at an appropriate level of abstraction for the purposes of them knowing the case that they need to meet. 162 But I disagree. Information asymmetry is one thing. But a cogent pleading is another thing. The former is no excuse for the form of pleading in [21]. 163 Now the applicant says that the "Information Sharing and Trade Co-Ordination Understanding" is not so vague or replete with alternative formulations as to be fatally deficient. The applicant says that to the contrary, it concerns a CAU which is alleged to have been formed either as at or during the relevant period, being a specific and "not an inordinately protracted period". Further, it is said that the allegations are pleaded against each of the respondents with respect to a defined and specific universe of Affected Currency Pairs and with respect to two discrete types of FX Instruments. 164 The applicant then seeks to confess and avoid by saying that to the extent that the plea contains several factual alternatives, this simply reflects the commonplace reality that there is a considerable asymmetry of information between the applicant and the respondents, particularly in the context of cartel allegations, and that following the completion of discovery and the filing of expert evidence the applicant will be in a position to articulate its case with a greater degree of precision if this is warranted. Indeed, on reflection it would seem that the applicant is short on confession and long on avoidance. 165 Further, the applicant says that the alternatives at [21(a)] are pleaded in a different context to the "hundreds, if not thousands, of alternative and cumulative combinations of allegations" impugned in Forrest at [27]. There, the plurality were concerned with ASIC's statement of claim encapsulating different substantive allegations which mixed "radically different and distinct ideas" (at [22]) and involved "confusion" of allegations of fraudulent misrepresentations with allegations of negligent misrepresentations (at [23]), and where ASIC sought to advance a substantively different case on appeal. The combinations entailed cases that were not only different in substance but also conflicting in terms of legal implications and case theories. It was in that context that the plurality made the observations that the pleader's task "does not extend to planting a forest of forensic contingencies and waiting until final address or perhaps even an appeal hearing to map a path through it" (at [27]). The applicant says that the question must always be whether the purpose of pleadings to fairly inform the opposing party of the case to be met has been achieved. In Forrest it was not. In the present case, it is. 166 The applicant says that the plea at [21(a)] does not seek to advance a confusing and contradictory legal case involving various different theories and permutations. Indeed, Mr Quinn QC boldly said that the applicant advances a confined claim for contraventions of the cartel provisions of the TPA and the CCA. The applicant makes similar observations about the pleaded series of CAUs at [21(b)]. 167 I would reject Mr Quinn QC's defence of the PASOC concerning [21(a) and (b)]. 168 In my view, the "Information Sharing and Trade Co-ordination Understanding" pleaded in [21(a)] and the series of such CAUs pleaded in [21(b)] should not be permitted to go forward in their present form. 169 First, as submitted by the respondents, the number of permutations and combinations is enormous such as to make the pleas vague and uncertain and my case management of the proceeding and the trial potentially unworkable. Now such an omnibus paragraph may desirably cover all possibilities and contingencies so far as the applicant is concerned, but that does not provide any necessary justification. 170 Second, even if I was to allow [21(a)], which I will not in its present form, [21(b)] is even more egregious and unjustifiable. Nothing could sensibly be said in its favour. On this aspect the pleading is clearly more egregious than that dealt with in Forrest. 171 Third, I should make it clear that I am not so much concerned with the vagueness of when the alleged CAUs were made or matters such as "employees or agents" or "related bodies corporate" points; it is convenient to deal with some phraseology questions concerning employees or agents later. But it seems to me that putting to one side such matters, nevertheless the vice reflected in my first point is still apparent. Further, let me pause and say here that although complaint has been made by the respondents as to the scope of the applicant's pleas concerning related bodies corporate, in fairness to the applicant it has sought to invoke s 44ZZRC (and its predecessor equivalent) which provides: Extended meaning of party For the purposes of this Division, if a body corporate is a party to a contract, arrangement or understanding (otherwise than because of this section), each body corporate related to that body corporate is taken to be a party to that contract, arrangement or understanding. 172 So, I will allow some flexibility to the applicant on this aspect in any attempt to replead. But the applicant should give the best particulars that it can on the identification of such related bodies corporate of the respondents that are relevant to the pleas of the CAUs. 173 Fourth, and given that on any view [21(b)] should go, there are several possibilities which the applicant should consider. 174 The first possibility is to dispense with [21(a)] entirely. In that eventuality the case would just plead the specific CAUs from [23]. 175 The second possibility is to start with the specific CAUs from [23], and then later to add back [21(a)] which could then perhaps be built on the foundation of the specific CAUs earlier pleaded. 176 The third possibility is to leave the umbrella CAU in [21(a)] where it is, but to curtail the number of permutations and combinations. Now I will not forecast the number that I may ultimately accept. I am not here giving advice as to the form which may be acceptable. But on any view it seems to me that [21(a)] should be repleaded with the number of possibilities significantly curtailed. 177 Let me say something about the specific CAUs from [23]. Although the respondents' criticisms have some force, I am not as concerned with these paragraphs. They should, however, be tightened up to reduce the number of permutations and combinations so that it is apparent for each respondent what is precisely being alleged. Further, each respondent should be provided with some identification of the Other Cartel Participants relevant to the pleas against that respondent to enable some choice to be made concerning potential contribution proceedings, even if limited.

OTHER PERCEIVED DEFICIENCIES 178 Let me now deal with the other matters that I summarised at the start of the previous main section.

Matters from which the arrangements are to be inferred 179 The respondents make the point that it is not apparent how the material facts and particulars pleaded, if proved, could establish any of the alleged CAUs. 180 Each alleged CAU is said to be inferred from various matters that can be categorised as follows. 181 The first matter is "findings" of regulators in other jurisdictions. I will proceed for the moment on the basis that these will be inadmissible against the respondents. 182 The second matter is admissions made by respondents other than the particular respondent. The respondents say that if respondent A makes admissions, these are likely to be inadmissible against, say, respondent B, subject to the rule concerning co-conspirators. Now all of that may be so, but I cannot decide such matters at the moment. 183 The third matter is the content of admissions made by a particular respondent. The respondents say that an admission by a particular respondent that it gave or received commitments may not correspond with the terms of the alleged CAUs. Now I should say that that may be so but I cannot decide such matters in the present context. 184 The fourth matter is the volume of communications between FX traders that participated in various online chat groups. The respondents say that this is not probative of the existence of an arrangement. I agree with the respondents that the mere fact that traders engaged in a large number of communications says little about whether or not, in the course of those communications, specific communications occurred that involved giving commitments corresponding with the alleged CAUs. I will elaborate on this in a moment. 185 The fifth matter is particular online chats between FX traders referred to in the schedules of particulars to the PASOC. I will elaborate on this aspect in some detail. 186 There are six schedules. Each schedule lists a series of what are described as "Relevant chatroom communications". Each of them are said to set out further particulars of "the acts, facts, matters and circumstances" from which the CAUs may be inferred. In this respect: (a) schedule A provides this for the "Information Sharing and Trade Co-ordination Understanding(s)" and the "Spread Understanding(s)"; (b) schedule B provides this for the "Information Sharing and Trade Co-ordination Understanding(s)" and the "WMR Fix Understanding(s)"; (c) schedule C provides this for the "Information Sharing and Trade Co-ordination Understanding(s)" and the "ECB Fix Understanding(s)"; (d) schedule D provides this for the "Information Sharing and Trade Co-ordination Understanding(s)" and the "Stop Loss Orders Understanding(s)"; (e) schedule E provides this for the "Information Sharing and Trade Co-ordination Understanding(s)" and the "Concealment Understanding(s)"; and (f) schedule F provides this only for the "Information Sharing and Trade Co-ordination Understanding(s)". 187 Clearly, these schedules list evidence, although that does not concern me given the nature of the allegations and the applicant's inferential case. 188 Now the online chats referred to in the schedules of particulars occurred at different points in time over a period of about six years. They are between small, varying groups of individuals from varying combinations of the banks. None included representatives of all of the respondents, let alone all of the respondents and Other Cartel Participants. The respondents say that it is therefore unclear what the applicant says these chats establish. In my view, there is force in the respondents' criticisms. It is unclear: (a) whether each identified communication is said to establish an arrangement; (b) whether some combination(s) of the communications is said to support an arrangement (and, if so, what combination(s)); (c) whether the communications are said to establish one arrangement or a series of separate arrangements (and, if a series, how many); (d) what parties are said to have made each arrangement; so it is unclear whether every participant in a particular chat is said to have given and received relevant commitments (or only some of them), and whether banks that did not participate in the same chat and communicate directly with one another are said to have given a commitment to one another (and, if so, how); and (e) what words the applicant relies upon to establish the relevant commitments; in some cases the applicant has identified the particular words on which it relies, but in others the reference to what occurred in the chat is vague to say the least. 189 I agree with the respondents that it is not readily apparent from the face of the pleading that the particulars are capable of establishing one or more of the alleged CAUs. 190 Now the applicant says that the chat room communications referred to in schedules A to F show that, throughout the relevant period, each of the respondents "readily and repeatedly shared confidential information regarding FX trades with other respondents and/or Other Cartel Participants, and agreed to co-ordinate FX trades". But that does not really answer the question: what particular CAU is then sought to be established? 191 Indeed, the chat room communications are bilateral communications about particular things relating to particulars days. Further, given the wide array of potential CAUs, it is difficult to identify which particular CAU is said to be supported by which particulars. 192 Moreover, an examination of the particulars highlights the difficulty. 193 An example was given by Mr Moore SC. Item 1 in schedule A identifies a relevant chat room discussion in the following terms: The Bloomberg interbank chat dated 22 January 2008, where A, acting on behalf of RBS, agreed with B, acting on behalf of Goldman Sachs, and C, acting on behalf of Credit Suisse, to a "pact on spreads" in relation to the NZD/USD currency pair. 194 Now assuming that this summary is accurate, NatWest says that one can see how this could potentially support a coherent allegation that on or about 22 January 2008, RBS (now NatWest), Goldman Sachs and Credit Suisse entered into some form of CAU that might have contained a price fixing provision in relation to the spread on the NZD/USD currency pair as applicable to a particular transaction or set of transactions, assuming for a moment that the "pact on spreads" was sufficiently precise to constitute a price fix, which it may or may not be. 195 But contrastingly, [21] pleads some form of umbrella agreement that each of the respondents (and/or other alleged cartel participants) would share information with the others "and/or would coordinate trading". In other words, it appears that the applicant pleads some overarching or umbrella agreement to either share information or enter into further agreements of which item 1 in schedule A is an example. There is a clear distinction between an agreement reached in the course of a particular chat, and an agreement to reach agreements. 196 NatWest says that the overarching agreement is not particularised. When and where did the parties enter into such an agreement? Which individuals from each of the parties entered into such an agreement? What, precisely, are its terms? For example, would NatWest, Goldman Sachs and Credit Suisse have been in breach of this overarching obligation if they had not agreed to a "pact on spreads" in respect of the particular NZD/USD currency pair on that particular occasion? If not, then what is the applicant's case? If so, then why: how far does the obligation go? What are its parameters? What does it oblige the parties to do, precisely? Generally, it says that an umbrella agreement "to co-ordinate trading" or "to share information" is quite different from item 1 of schedule A. 197 Further, like Mr Moore SC, Mr Stuart Lawrance for the fourth respondent (JPMorgan) also gave as an example the first item identified in schedule A. The relevant discovered document includes the following passage: X: lets sign a pact X: on spreads Y: agree X: Z Z: shd be 10 wider than 8 with get some moans X: you in X: im 10 maybe 12 if i can get away with it 198 Now Mr Lawrance pointed out that the applicant may want to rely upon that chat regarding an alleged CAU between Credit Suisse, Goldman Sachs and RBS (now NatWest). But the PASOC indicates that the chat may be deployed to prove the making of an alleged CAU between JPMorgan, Credit Suisse, Goldman Sachs and RBS. And it may be deployed as evidence of Credit Suisse, Goldman Sachs and RBS giving effect to an alleged CAU between JPMorgan, Credit Suisse, Goldman Sachs and RBS. And it may be that the applicant is going to say that JPMorgan is liable for loss caused by the "pact" above between employees of Credit Suisse, Goldman Sachs and RBS (now NatWest). Or maybe not. It is said that one just does not know. 199 More generally, it is said that none of the particulars to [21(a)] support the existence, or provide particulars of, the alleged umbrella agreement. On the contrary, they tend to provide details (at most) of the existence of a series of specific conversations between specific people on specific occasions about specific transactions. It is said that the existence of individual chat room communications does not suggest an umbrella agreement. Therefore, so the respondents say, there are no particulars of the alleged umbrella agreement pleaded in [21(a)], and indeed the particulars provided are of a different complexion. 200 Further, it is said that the problems are compounded further when one has regard to the alleged content of the alleged overarching agreement. 201 So, [21(a)] says that to the extent that the agreement is an agreement "to coordinate trading", it is an agreement to coordinate trading "including by … widening the Spreads provided to customers in respect of Affected Currency Pairs": i.e. an unspecified and unqualified obligation on all parties to widen Spreads. What is the precise content of this obligation to coordinate by "widening the Spreads"? When must they be widened? In what circumstances? By how much? By what means? The allegation in its current form is said to be incoherent. The particulars suggest that any spread widening (if it occurred at all) is not pursuant to some overarching obligation between all or some respondents to widen the Spreads, but rather might, at most, be a product of some individual exchange in an individual chat room that is, as one would expect, context specific. 202 Reading [21(a)] together with the particulars, it is said not to be possible to determine how it is alleged that the various communications between representatives of any one respondent and other persons in chat room conversations are said to have given rise to a consensus or meeting of minds involving the assumption of obligations, or when that occurred, between whom, on the basis of what provisions and by reference to what primary facts. 203 More general points by way of criticism have also been made. 204 The first point is that many of the chat rooms do not involve all of the respondents. Nineteen chat rooms are referred to in the paragraph. Only the first of those chat rooms is alleged to have involved all of the respondents together. Seven rooms are alleged to have involved three of the respondents and eleven are alleged to have involved just two of the respondents. It is not apparent how the applicant alleges that any and, if so, what "meeting of minds" between the five respondents and many other parties occurred in circumstances where the impugned communications were made in rooms involving small and disparate subsets and combinations of the respondents and other parties. 205 The second point is that it is apparent from a comparison of the chat rooms identified in the second paragraph to the particulars to [21(a)] and the specific conduct relied upon in the schedule, that in a number of instances not all of the members of the relevant chat room were involved in the impugned interaction or communication. For example, in sub-particular (XI) of the second paragraph of the particulars to [21(a)] it is alleged that the chat room known as "Horras" included FX traders acting on behalf of at least three of the respondents. However, when one turns to schedule A, the only explicit reference to the "Horras" chat room (at item 3 of schedule A) refers only to a single interaction between traders allegedly representing just two of the relevant respondents. 206 The third point is that the impugned chats referred to in schedule A relate only to a subset of the chat rooms referred to in the second paragraph of the particulars. The "relevant chat room communications" in schedule A explicitly refer to the five different chat rooms by name. There are 12 relevant communications identified in the schedule in total. Yet the second paragraph of the particulars to [21(a)] alleges that 19 chat rooms are somehow relevant to the allegation. 207 Further, as Mr Darke SC submitted, a number of the chat room communications particularised by the applicant are said to have been in relation to specific currency pairs, such as NZD/USD, EUR/USD and USD/JPY. It is unclear whether and, if so, how the applicant relies on these communications in support of the existence of alleged umbrella understandings with respect to Affected Currency Pairs other than those mentioned in them. A like point arises in relation to the findings said to have been made in certain US Department of Treasury Comptroller of the Currency Consent Orders regarding Citibank's and JP Morgan's G10 Spot FX traders. These are also included in the particulars to [21(a)] (see sub-particular (vi) to paragraph five), but it is unclear whether, and if so how, they are relied upon in support of alleged umbrella understandings with respect to non-G10 Affected Currency Pairs. 208 Similarly, Mr Darke SC pointed out that all but two of the chat room communications particularised by the applicant are said to have occurred at various times during, rather than prior to, the relevant period. It is unclear whether and, if so how, the applicant relies on these communications as supporting its primary case that the alleged umbrella understandings were made by the start of the relevant period. Further, it is less clear how a chat room communication that is said to have occurred in, for example 2008, is to be relied on as supporting the existence of an umbrella understanding said to have been made in, say, 2012 (that being a further possibility encompassed within [21(a)]). 209 Further and more generally, similar criticisms may be made with respect to each of the other categories of alleged CAUs, which substantially repeat the particulars to [21] and cross-refer to one another. It is not clear how the applicant contends that each of those understandings arose by reference to exactly the same particulars as are alleged to support each of the alleged singular overarching CAUs. In each of [21(b)], [23(b)], [25(b)], [27(b)], [29(b)] and [31(b)] the applicant simply adopts the same verbal formula of referring to and repeating the particulars subjoined to the singular CAU allegation. The respondents say that it is unlikely that the same set of facts, matters and circumstances which is said to give rise to an overarching CAU also gives rise to each of a series of cumulative and alternative CAUs. 210 Finally on this aspect, it is said that the volume of the communications is not to the point. It says nothing about the content of what was allegedly discussed or agreed in those communications.

Analysis 211 The applicant says that the PASOC provides adequate particulars of the acts, facts, matters and circumstances from which the "Information Sharing and Trade Co-Ordination Understanding" (and indeed all the pleaded CAUs) may be inferred. And the applicant says that I should approach the task on the basis that if the inference alleged cannot be said to have no real prospect of success, the claim in the pleaded form should be permitted to go forward. So it is said that I am not required or permitted at this stage of the proceeding to make any findings as to which inferences are to be drawn. That is a matter to be left for trial. So long as the inferences contended for by the applicant are reasonably arguable, it is said that they should be allowed to proceed to trial. Now I should say that I have no difficulty with these general points. But the question is what is reasonably arguable from the applicant's current particulars. 212 The applicant says that taking the "Information Sharing and Trade Co-Ordination Understanding" during the relevant period as an example, the particulars of chat room communications set out at schedules A to F support a reasonably arguable inference that each of the respondents made the alleged overarching CAU. 213 The applicant says that, relevantly, the sample of chat room communications set out at schedules A to F shows that, throughout the relevant period, each of the respondents readily and repeatedly shared confidential information regarding FX trades with other respondents and/or Other Cartel Participants, and agreed to co-ordinate their FX trades. For example: (a) item 4 in schedule B refers to a Bloomberg interbank chat dated 13 October 2010, being a chat between "The Cartel", where C, acting on behalf of Barclays, and A, acting on behalf of JPMorgan, agreed to "double team" ahead of the WMR Fix. C said in the chat: "I'd prefer we join forces" and A responded: "perfick…let's double team em". After the WMR Fix, A and C congratulated each other; (b) item 1 in schedule C refers to a Bloomberg interbank chat dated 22 December 2008, being a chat between "The Cartel", where B, acting on behalf of Citibank, and A, acting on behalf of RBS (now NatWest), discussed information regarding their ECB Fix positions and afterwards B stated: "nice work hot shot" and "1 team…" and A replied "I thank youll" and "job done"; (c) item 9 in schedule E refers to a Bloomberg interbank chat dated 18 March 2011, being a chat between "UK Lads", where D, acting on behalf of UBS, shared FX trade information with E, acting on behalf of RBS (now NatWest) and F, acting on behalf of Barclays. D stated: "keep hush men" and G replied: "never goes any further from me". 214 The applicant says that viewed in their totality, as opposed to as individual conversations, these and other chat room communications at schedules A to F constitute sufficient acts, facts and circumstances from which it is open to infer that the respondents had, during the relevant period, reached the "Information Sharing and Trade Co-Ordination Understanding". 215 The applicant's case is that the repeated sharing by each of the respondents of confidential information about FX trades during a prolonged period and the repeated references to co-ordination of FX trade activity support an inference that the respondents were acting pursuant to a pre-existing umbrella CAU of the kind alleged at [21(a)]. 216 Further, the applicant has extolled the virtues of its case based upon the admissions said to have been made by some of the respondents. 217 It says that the particulars of chat communications in the PASOC must also be viewed in the context of the admissions set out at sub-particular (v) of paragraph five of the particulars subjoined to [21(a)], sub-particulars (iii) to (v) of paragraph five of the particulars subjoined to [23(a)], sub-particular (iii) of paragraph five of the particulars subjoined to [25(a)], and sub-particulars (vi) to (vii) of paragraph five of the particulars subjoined to [31(a)]. 218 For example, sub-particular (v) of paragraph five of the particulars subjoined to [21(a)] refers to an admission by Barclays in the New York State Department of Financial Services Consent Order in the matter of Barclays dated 19 May 2015 that "From approximately 2008 through 2012, certain FX traders at Barclays communicated with FX traders at other banks to coordinate attempts to manipulate prices in certain FX currency pairs and certain FX benchmark rates, including the WM/R and ECB fixes. The majority of these communications took place in multi-bank online chat rooms". 219 Further, sub-particular (iii) of paragraph five of the particulars subjoined to [23(a)] refers to admissions by the respondents or other entities in their corporate group in US Plea Agreements that each of their FX traders entered into and engaged in a conspiracy with other dealers in the FX Spot market to fix, stabilise, maintain, increase or decrease the price, and rig bids and offers for, the EUR/USD currency pair exchanged in the FX Spot market by agreeing to eliminate competition in the purchase and sale of the EUR/USD currency pair in the US and elsewhere. 220 The applicant says that it is not to the point that these admissions relate to a narrower universe of misconduct than that alleged against the respondents in this proceeding. The relevant point is that the existence of the admissions makes it inherently implausible that the clandestine sharing of confidential information and the FX trade co-ordination referred to in the chat particulars at schedules A to F was confined and isolated, rather than being part of an overarching CAU of the kind alleged at [21(a)] (and the other CAUs). 221 Further, the applicant says that the adequacy of the particulars to the "Information Sharing and Trade Co-Ordination Understanding" (and indeed all the pleaded CAUs) ought properly be assessed bearing in mind that the applicant has, at this stage, only received initial discovery from the respondents, and that the "painstaking process" of reviewing that discovery is still ongoing. 222 It says that given the unique and industry-specific lexicon employed by the chat participants, the process of reviewing and deciphering the meaning of the large volume of chat records discovered to the applicant is significantly more labour-intensive, time-consuming, specialised and complex than typical discovery review. Accordingly, schedules A to F set out only a targeted sample of interbank chat room communications, from which the "Information Sharing and Trade Co-Ordination Understanding" (and all the alleged CAUs) may be inferred. It says that further particularisation can properly occur following the completion of the initial discovery review and the completion of the broader discovery process. 223 In my view, the particulars given in support of the CAUs should be reformulated. 224 It seems to me that each respondent should be given a separate set of particulars in support of how it is said that such a respondent was a party to or gave effect to each particular CAU asserted against that respondent. 225 In my view, it is not satisfactory for the applicant to roll together all respondents in relation to all particulars, which is essentially what has been served up. 226 Further, if it is being said for a particular respondent that the overt acts of another respondent or a third party or their employees or agents is sought to be put against the particular respondent, then in my view the particulars should properly explain and set this out. 227 Further, if the applicant is seeking to rely upon a respondent's admission, this should be clearly identified by reference to the relevant CAU or the giving effect thereto. 228 Further, in terms of the pleas of the CAUs it is not clear from the particulars currently provided as to what is the relevant meeting of minds or mutual obligations that are said to underpin these pleas. In my view, when a new pleading is propounded with proper particulars, this should be addressed by reference to the specific CAUs pleaded. 229 Further, the schedules of particulars currently provided no doubt could be said to support narrower and perhaps ad hoc CAUs between limited players, indeed perhaps even in some cases a consensus on a particular day involving only two players and one currency pair. In any new pleading with proper particulars, the applicant will either have to plead narrower CAUs or explain how such particulars could reasonably support the broader CAUs, if such pleas are persisted in.

Other issues concerning phraseology 230 UBS says that a further problem with the PASOC concerns the applicant's use of the formulae: (a) "the customer or their employee or agent" and "the Dealer or their employee or agent" in the group definition; and (b) "[the respondents] by themselves, and/or their employees or agents" in [21] to [32]. 231 UBS says that the proposed pleas are ambiguous and likely to cause embarrassment. Accordingly it says that leave should not be granted. But I would reject these criticisms. 232 No ambiguity arises by reason of the use in the PASOC of the said phrases. These formulations recognise a distinction between a customer, a Dealer or one of the respondents (as the case may be) acting by themselves or through their employees or agents. A body corporate such as a respondent may act by itself, as opposed to through an agent for the conduct of whom it is vicariously liable, to the extent that it acts by its directing mind and will. 233 In my view, the PASOC appropriately pleads, by way of material facts, that each of the CAUs was reached by the respondents by themselves or, relevantly, their agents and/or related bodies corporate. I will allow the applicant to articulate additional facts, including with respect to the identities of the relevant agents and/or related bodies corporate, with a further degree of particularity following the completion of discovery. 234 Let me turn to another point. 235 The respondents say that no facts are pleaded that are capable of establishing that the relevant agents and related bodies corporate were incorporated or carried on business in Australia, even though the conduct on which the applicant relies appears to have occurred outside of Australia. Now whilst agency attributes legal responsibility for the agent's act within the scope of his authority to his principal, it "does not in a physical sense transmogrify the act done by the agent into an act done by the principal" (IL v The Queen (2017) 262 CLR 268 at [82] per Bell and Nettle JJ). Nor do the statutory provisions that deem a body corporate to be party to an arrangement made by its related bodies corporate. Accordingly, the respondents say that facts capable of establishing that each relevant agent and related body corporate was incorporated or carried on business in Australia must be pleaded (see s 5 of the TPA and the CCA). 236 But I agree with the applicant that it is far from clear that an agent and/or related body corporate must meet the "carrying on business within Australia" requirement of s 5 of the TPA or the CCA (as applicable) for the purposes of establishing liability against the principal who otherwise meets that requirement. Notably, s 44ZZRC of the TPA and the CCA, which deem a body corporate to be party to a contract, arrangement or understanding made by its related bodies corporate are silent on whether those related bodies corporate must themselves meet the jurisdictional requirements of s 5. In my view, any tricky questions regarding the interaction between the requirements of s 5 and principles of agency and/or the terms of s 44ZZRC ought not be resolved on a summary basis. I will leave these alone until trial. 237 Let me make two other points on the related bodies corporate aspect. First, as I have said, it would seem that there is reliance on s 44ZZRC. But this should be properly identified in the pleading. Second, the respondents say that the PASOC alleges that each respondent made each alleged arrangement by agents and/or related bodies corporate, but the relevant agents and bodies corporate have not been identified. I agree that more particulars should be provided. 238 Let me now turn to another topic.

The relationship between the allegations and the causes of action 239 The respondents say that the PASOC does not conform to the alleged statutory causes of action. 240 First, they point out that each of [21], [23], [25], [27], [29] and [31] of the PASOC employ the form of words "containing provisions, or to the effect, that". The pleading is therefore that the existence of a provision of a particular type is only one alternative. But this is not in conformity with the statutory language, which requires the existence of a provision with a proscribed effect, not just that a CAU has a particular effect. The derivative paragraphs such as [22], [24], [26], [28], [30] and [32], are likewise infected with the same defect. I agree with this point. The applicant should correct this in the next version of its pleading. 241 Second, as to the "Information Sharing and Trade Co-Ordination Understanding(s)", it is said that the applicant's allegations are made by reference to s 45A(1), in respect to the pre-24 July 2009 claims, or the purpose/effect condition in s 44ZZRD(2), in respect to the claims on and from 24 July 2009, each of which requires the applicant to identify a purpose, effect or likely effect of fixing, controlling or maintaining prices. But it is said that an arrangement or understanding to share information is not an arrangement or understanding to fix, control or maintain prices. But in my view this is reasonably arguable in favour of the applicant. 242 Third, the respondents point out that the applicant contends, in terms of the provision or "effect" of the CAU relied upon for each allegation, that: (a) each of the parties would "widen the Spreads provided to customers with respect to one or more Affected Currency Pairs" (for the "Spread Understanding(s)"); (b) each of the parties would "coordinate their Spot trading activities to influence the price of the WMR Fix with respect to one or more of the Affected Currency Pairs" (for the "WMR Fix Understanding(s)"); (c) each of the parties would "coordinate their Spot trading activities to influence the price of the ECB Fix in respect to one or more of the Affected Currency Pairs" (for the "ECB Fix Understanding(s)"); and (d) each of the parties would "manipulate Spot Rates to trigger Stop Loss Orders with respect to one or more Affected Currency Pairs" (for the "Stop Loss Understanding(s)"). 243 But the respondents say that none of these concepts nominates a sufficiently precise effect upon pricing freedom which accords with the requirements for the fixing, controlling or maintaining of a price for goods and services under ss 45A or 44ZZRD(2). 244 But I am not able to say that this is not reasonably arguable. I will not finally rule on these points at this stage. 245 Fourth and more generally, the respondents say that the pleading of the alleged contraventions of the TPA and the CCA is deficient because the applicant has failed to identify how the elements of the contraventions are said to be established for each of the alleged understandings. It is said that the applicant has not properly pleaded why, and the material facts relied upon to contend that, the alleged understandings had the purpose, effect or likely effect of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the FX rates, which the applicant appears to allege to be the price of the FX Instruments supplied by the parties. Further, it is said that the applicant has not properly pleaded why, and the material facts relied upon to contend that, the parties were relevantly in competition with each other. 246 Now it is not in doubt that these matters need to be pleaded. They are or were elements of s 45(2), read with s 45A, of the TPA, in respect of the pre-24 July 2009 claims, and elements of ss 44ZZRJ and 44ZZRK, read with s 44ZZRD, of the TPA and the CCA (as applicable), in respect of the claims on and from 24 July 2009. As I have said, prior to 24 July 2009, s 45(2), read with s 45A, of the TPA provided, relevantly, that a corporation contravened that section if it made or gave effect to a contract, arrangement or understanding containing a provision that had the purpose, or had or was likely to have the effect, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for goods or services to be supplied by the parties or by any related bodies corporate in competition with each other. And on and from 24 July 2009, ss 44ZZRJ and 44ZZRK of the TPA and the CCA (as applicable) provided that a corporation contravenes those sections if it made a CAU containing a "cartel provision" (s 44ZZRJ), or "gave effect" to a "cartel provision" contained in a CAU (s 44ZZRK). Relevantly, a "cartel provision" is a provision of a CAU which satisfies both the "purpose/effect condition" and the "competition condition" in s 44ZZRD. Accordingly, each of the elements identified are required in order to plead a viable cause of action against the respondents. 247 Now I note that the applicant purports to plead those matters at [33] and [37] of the PASOC. So, [33] purports to plead the elements of a contravention of s 45(2) of the TPA, read with s 45A, prior to 24 July 2009. And [37] purports to plead the elements of contraventions of ss 44ZZRJ and 44ZZRK of the TPA or the CCA (as applicable), read with s 44ZZRD, on and from 24 July 2009. But according to the respondents, what appears in those paragraphs is little more than a recitation of the language of the statutory provisions. 248 It is convenient at this point to address a number of sub-topics.

Allegation of fixing, controlling or maintaining the "price" 249 As I have already said, [21] alleges that the respondents were parties to the "Information Sharing and Trade Co-Ordination Understanding(s)" that are said to have contained a series of provisions relating to sharing information and/or co-ordinating trading strategy or Spreads. There are then, as also mentioned, a series of CAUs alleged which are said to have had different provisions (see [23], [25], [27], [29] and [31]). 250 It is said by the respondents that [33] and [37] then contain rolled up allegations that each of the alleged understandings had the purpose or effect or likely effect of fixing, controlling or maintaining the FX rates applicable with respect to FX Instruments supplied by each of the respondents. Thus, the "price" which is alleged to have been fixed is said to be the "FX rates" for the relevant "FX Instruments". 251 But the respondents say that [33] and [37] do not identify the connection between the "FX rates" for the "FX Instruments" supplied by the respondents and what it is alleged the parties to each of the different CAUs had agreed to do. 252 For example, in relation to the "Information Sharing and Trade Co-Ordination Understanding(s)", it is not clear how the alleged understandings to "share information" and to do so in relation to "trade volumes or trade strategy" are said to have had the purpose or effect or likely effect of fixing, controlling or maintaining the FX rate of any relevant FX Instrument. It is said that there is no apparent connection between sharing information and fixing, controlling or maintaining a price, and that the applicant has made no attempt to identify the material facts it relies upon to establish such a connection. 253 Similarly, in relation to the "Stop Loss Order Understanding(s)", it is said that the applicant does not plead the basis upon which it alleges that manipulating Spot Rates to trigger Stop Loss Orders had the purpose or effect or likely effect of fixing, controlling or maintaining the FX rates for the relevant FX Instruments. Now a Stop Loss Order comprises an instruction from a customer to a Dealer to buy or sell a volume of currency if the exchange rate rises or falls to a particular rate. But it is said that there is no necessary connection between manipulating Spot Rates to trigger such orders and fixing, controlling or maintaining the FX rates for FX Instruments supplied by the respondents. And it is said that the applicant has not pleaded the material facts on which it relies to establish a connection of that kind. 254 Further, the respondents say that the particulars to [33] and [37] do not assist in any way in remedying this deficiency. 255 Generally, according to the respondents, the applicant should separately plead the basis on which it contends that each of the alleged CAUs had the purpose or effect or likely effect of fixing, controlling or maintaining the relevant alleged "price". 256 But I would reject the respondents' submissions at this time, save that I do consider that further particulars should be given. 257 The PASOC at [33] and [37] alleges that the CAUs had the purpose or effect, or were likely to have the effect, of fixing, controlling or maintaining or providing for the fixing, controlling or maintaining, of the FX rates applicable with respect to FX Instruments supplied, or likely to be supplied, by each of the respondents, in competition with each other and/or one or more of the Other Cartel Participants, within the meaning of s 45A of the TPA and s 44ZZRD of the TPA and the CCA (as applicable). 258 By this plea, the applicant adequately alleges that the CAUs had the requisite statutory purpose or effect. 259 Further, the particulars to [33] (which are referred to and repeated at [37]) state that the matters alleged may be inferred from, inter-alia, the matters alleged in [4(d)], [5(d)], [6(d)], [7(d)], [8(d)], [11], [16], [19] and [20] and the particulars subjoined thereto, particular (i) subjoined to [13] and the particulars subjoined to [21], [23], [25], [27], [29] and [31], including the acts, facts, matters and circumstances set out in the schedules of particulars. 260 These particulars establish, inter-alia, that the respondents were at all material times carrying on a global business as Dealers in FX Instruments, including in Australia and/or to customers in Australia, and, together with the Other Cartel Participants, were responsible for at least 89% of global FX trade during the relevant period. In those circumstances, it is open to infer that the CAUs had the effect of fixing, controlling or maintaining the price of FX Instruments. 261 Further, the acts, facts, matters and circumstances in the schedules of particulars also support an inference that the purpose and effect of the CAUs was to fix, control or maintain the price of FX Instruments. 262 But in my view, it is appropriate that further particulars of the purpose and effect of the CAUs with respect to the price of FX Instruments be provided after the completion of discovery. 263 Let me make a separate point. If the applicant is seeking to invoke s 44ZZRD(8) or its predecessor, then this should be properly articulated. It will be recalled that s 44ZZRD(8) provides: Considering related provisions - purpose/effect condition (8) For the purposes of this Division, a provision of a contract, arrangement or understanding is taken to have the purpose, or to have or be likely to have the effect, mentioned in subsection (2) if the provision, when considered together with any or all of the following provisions: (a) the other provisions of the contract, arrangement or understanding; (b) the provisions of another contract, arrangement or understanding, if the parties to that other contract, arrangement or understanding consist of or include at least one of the parties to the first-mentioned contract, arrangement or understanding; has that purpose, or has or is likely to have that effect. 264 So, if there is to be an aggregation of the provisions of a CAU or the provisions of another CAU so as to establish the purpose/effect condition (or the prior equivalent) in respect of a provision of a particular CAU, then this should be clearly articulated. Now it would seem that the applicant seeks to invoke such an aggregation in some cases, but this has not been made transparent. The applicant should remedy this deficiency. 265 Let me turn to the next topic.

Competition condition 266 The respondents say that the applicant has also failed to identify adequately the basis on which it alleges that the parties to each of the CAUs were "in competition with" each other in relation to the relevant FX Instruments at the time those understandings were reached. 267 They say that the only paragraphs which deal with this issue are [19] and [20], which allege that the respondents were in competition with each other because they supplied FX Instruments generally. 268 The respondents complain that this is deficient. Under s 44ZZRD(4), the competition condition is only satisfied if the applicant can establish that the parties were in competition with each other in respect of a supply, or likely supply, of goods or services the subject of the purpose/effect condition. Competition, and whether the competition condition is satisfied, must also be determined at the time the parties entered into the impugned arrangements or understandings. Similarly, in respect of the pre-24 July 2009 conduct, s 45A(1) requires that the parties to the CAU, or any related bodies corporate, are in competition with each other. 269 The respondents say that the applicant must plead the basis on which it is alleged that the respondents were in competition with each other in relation to the FX Instruments whose "price" was the subject of each of the alleged CAUs. That has not been done. So the respondents say that the PASOC fails to disclose a reasonable cause of action against them. 270 I do not accept the respondents' assertions. 271 In my view, [20] adequately pleads the material fact that that the respondents were or were likely to be in competition with each other for the supply of FX Instruments, or were likely to have been in such competition but for the alleged CAUs. 272 The competition plea is supported by cross-references to the matters alleged in [4(d)], [5(d)], [6(d)], [7(d)], [8(d)], [11], [16] and [19]. Relevantly, [4(d)] to [8(d)] allege that each of the respondents was at all material times carrying on a global business as a Dealer in FX Instruments, including in Australia and/or to customers in Australia. The particulars subjoined to [5(d)], [6(d)], [7(d)] and [8(d)] set out the percentages of Spot and Outright Forward trades globally and in Australia attributable to each respondent. Further, [11] and [16] allege the substitutability of Spots and Outright Forwards with respect to a particular currency pair of a particular volume supplied by Dealers in the Global FX Market and the Australian FX Market, respectively. Further, [19] alleges that during the relevant period, each of the respondents supplied, offered to supply and/or were willing and able to treat to supply FX Instruments to customers in one or more of the Global Trading Centres, including in Australia. I agree with the applicant that these alleged facts collectively provide adequate support for the competition plea with respect to the respondents. 273 Further, as I have already indicated, [33] and [37] allege that the CAUs had the purpose or effect, or were likely to have the effect, of fixing, controlling or maintaining or providing for the fixing, controlling or maintaining, of the FX rates applicable with respect to FX Instruments supplied, or likely to be supplied, by each of the respondents, in competition with each other and/or one or more of the Other Cartel Participants, within the meaning of s 45A of the TPA and s 44ZZRD of the TPA and the CCA (as applicable). 274 But I do accept that the applicant should provide further particulars of the competition plea upon the completion of discovery.

Relevant markets 275 The respondents say that the PASOC does not plead facts capable of establishing the alleged markets. The product dimension of the alleged markets is the supply of FX Instruments. FX Instruments are defined as Spots and Outright Forwards. To be within the same market, Spots and Outright Forwards should be substitutable with one another (s 4E of the TPA and the CCA). But it is said that no facts capable of establishing that Spots and Outright Forwards are substitutable have been pleaded. 276 Further, they say that the product dimension of the markets appears to comprise the supply of FX Instruments with respect to all currency pairs. But the only fact pleaded in respect of the substitutability of FX Instruments with respect to different currency pairs is that currency the subject of FX Instruments is "fungible"; see [11(a)] with respect to the alleged Global FX Market and [16(a)] with respect to the alleged Australian FX Market. They say that fungibility of currency is not the same as and cannot establish demand or supply side substitutability of FX Instruments with respect to different currency pairs. 277 But I would reject the respondents' submissions. In my view there has been an adequate plea of the relevant markets. The PASOC pleads facts which are capable of establishing the Global FX Market and the Australian FX Market, identifying the product and geographical dimensions of the relevant markets, including by reference to the concept of substitutability. 278 Further, on the question of substitutability, it is alleged in the context of the Global FX Market that a Spot with respect to a currency pair of a specific volume was substitutable anywhere in any of the Global Trading Centres, for any other Spot with respect to the same currency pair of the same volume. It is also alleged that an Outright Forward with respect to a currency pair of a specific volume was substitutable anywhere in any of the Global Trading Centres, for any other Outright Forward with respect to the same currency pair of the same volume. Further, it is alleged that a Dealer entering into an FX Instrument with a customer anywhere in any of the Global Trading Centres with respect to any given currency pair of a specific volume provided the same, or effectively the same, service to that customer as any other Dealer in any of the Global Trading Centres entering into the same type of FX Instrument with respect to the same currency pair of the same volume. It is then alleged that a Dealer in Australia supplying and/or offering to supply an FX Instrument to a customer in or outside Australia with respect to any given currency pair of a specific volume provided the same, or effectively the same, service to that customer as any other Dealer in Australia supplying and/or offering to supply the same type of FX Instrument in respect of the same currency pair of the same volume. There are similar pleas in the PASOC with respect to the Australian FX Market. Moreover, no further substitutability needed to be pleaded between a Spot and an Outright Forward involving the same currency pairing or between or across different currency pairings in relation to either FX Instrument. But I will not preclude the respondents from raising this matter again once the next version of the applicant's pleading has been put forward. 279 In my view the pleas are sufficient at this time.

"Giving effect to" allegations 280 Now the respondents also complain about the "giving effect to" allegations. But in my view, the "giving effect" allegations contained in [22], [24], [26], [28], [30] and [32] are also adequately pleaded. 281 An inference is open from the chat particulars referred to in the schedules of particulars, among other particulars, that the respondents gave effect to each of the CAUs to the benefit of one or more of them. 282 As the applicant has pointed out, the Bloomberg interbank chat dated 13 November 2008 at item 2 of schedule B is one example in support of such an inference with respect to giving effect to the "Information Sharing and Trade Co-Ordination Understanding(s)" and the "WMR Fix Understanding(s)". 283 In this chat transcript, A, acting on behalf of RBS, C, acting on behalf of Barclays, and B, acting on behalf of Citibank, discussed their EUR/USD trading positions ahead of the WMR Fix. A told C and B that RBS had bought a large amount of EUR against GBP and noted that the exchange rate has "colla[ps]ed". A then suggested that the group should sell EUR and C told A not to sell yet. A asked: "maybe in 20 mins we can sell it ?" (i.e. at approximately 4.00 pm London time, after the WMR Fix); C confirmed that A should wait. At 15:42:12, C informed B and A that he had an order to buy EUR 110 million against USD at the WMR Fix. A responded that he had a "decent" amount "to buy as well". B told A and C that he was also a buyer of EUR 125 million against USD at the WMR Fix. C stated: "3 WAY RACE!!!". 284 After the WMR Fix, C told the group that he bought EUR 30 million against USD before the Fix at a rate of 40. B stated that the EUR/USD WMR Fix rate was 68.5. C and B responded by saying, respectively, "woo hoo" and "wheeeyyy". If C then sold EUR 30 million against USD at the WMR Fix rate of 68.5, having previously acquired that sum of EUR at the rate of 40, he would have made a profit of 28.5 "pips", equivalent to approximately USD $85,500. At 16:32:08, A told the group that he bought EUR 100 million against USD at an average rate of 47 ahead of the WMR Fix. If A then sold the 100 million EUR against USD at the WMR Fix rate of 68.5, having previously acquired that sum of EUR at the rate of 47, he would have made a profit of 21.5 "pips", equivalent to approximately USD $215,000. 285 Further, the Bloomberg interbank chat dated 13 April 2012 referred to at item 18 of schedule C is another example in support of an inference with respect to giving effect to the "Information Sharing and Trade Co-Ordination Understanding(s)", as well as with respect to the "ECB Fix Understanding(s)". 286 The chat transcript records A (on this date acting on behalf of JPMorgan) and B, acting on behalf of Citibank, discussing information regarding their ECB Fix positions. B told A that he had orders to buy approximately EUR 170 million against USD (also referred to as being "RHS") at the upcoming ECB Fix. A responded to B that he had a total of EUR 101 million to sell against USD (also referred to as being "LHS") at the ECB Fix. A asked whether he should "stick other way" (i.e. change his position from LHS to RHS) and B replied, "yes". A then said: "might be able to get you a lil ammo" (i.e. to help B build his RHS position) and at 08:08:29 (equivalent to 1:08 pm, London time) provided B with a further EUR 48 million to buy ahead of the ECB Fix. B confirmed after the ECB Fix that he had orders to buy EUR 330 million, but in total, he bought EUR 370 million ahead of the ECB Fix. B celebrated when the ECB Fix rate for the EUR/USD on this date was revealed to be 48, stating "yeeeeeeeeeeeeeeeeeeeah…48". B stated that he bought EUR 370 million against USD at an average rate of 46.4. If B then sold that sum of EUR against USD at the ECB Fix rate of 48, he would have made a profit of 1.6 "pips", which is equivalent to approximately USD $59,200. 287 Further, these are not isolated examples. As Mr Quinn QC described it with his cadenced phraseology, they are fibres of the fabric of facts exemplified in the schedules of particulars which support an inference that during the relevant period the respondents gave effect to the alleged CAUs to the benefit of one or more of them. 288 Further, it seems to me that the applicant requires discovery of additional materials, including the respondents' transaction data, in order to further particularise the "giving effect" allegations. 289 Now the applicant sought discovery of an initial tranche of such transaction data at an earlier case management hearing. This course was resisted by all respondents except UBS. Barclays submitted that such data was not relevant and questioned its value for the purpose of the applicant particularising its claim. Citibank submitted that the applicant had more than enough in order to reframe its pleading without the transaction data. JPMorgan and NatWest were similarly intransigent. 290 In ultimately declining to make discovery orders at that time in respect of the transaction data of respondents other than UBS, I said: I don't think you need [transaction data] to get the pleadings in order. I can understand how it's important to your forensic analysis. At this stage, given the objections to production by the second through to fifth respondents, and also Mr Caleo [QC]'s point, that he would like to put on material, I'm not inclined to give you, from the second through to fifth respondents, the transactional data… 291 In my view further and better particulars should be provided once the requisite transaction data and other material has been discovered.

The pleading of causation and loss 292 The respondents say that the applicant's pleaded case on causation and loss is cursory. It is said that it fails to grapple with the number and variety of alleged CAUs that the applicant seeks to advance. It is expressed at a level of generality that does not provide any real explanation of how each of the alleged CAUs caused loss and damage to the applicant and the group members or of what the nature of that loss was. 293 I agree with the respondents' criticisms to some extent. 294 As pleaded at [40], the applicant's case on causation is that, by reason of the respondents' contraventions, during the relevant period "Spreads were increased on all Affected Currency Pairs traded in the Global FX Market and/or the Australian FX Market" and the costs of entering FX Instruments in relation to Affected Currency Pairs were inflated or increased above what they would otherwise have been. 295 But as the respondents rightly say, these are vague and generalised allegations. No attempt is made to identify a causative link between any particular alleged CAU or series of CAUs and an effect on either Spreads or costs, even at a level of theory. And no attempt is made to identify categories or classes of Spreads or costs which may have been the subject of an effect or the nature or extent of the effect that is said to have arisen. As such, it is difficult to determine how it is alleged that the applicant or any particular member of the group has been affected by the impugned conduct. 296 As the respondents contend, it is incumbent upon the applicant to plead the material facts establishing this asserted causal link between, on the one hand, the respondents' alleged contraventions and, on the other, the increase in Spreads on all Affected Currency Pairs and the inflation of costs in relation to all Affected Currency Pairs, respectively. That includes pleading the relevant counterfactual scenario on which the applicant relies. 297 But the applicant has not pleaded any material facts which would sustain its rolled up allegations. As the respondents correctly said, what has been alleged leaves numerous questions unanswered. 298 First, on what basis does the applicant contend that the alleged CAUs affected every combination of the Affected Currency Pairs on every day during the relevant period? For example, on what basis does the applicant contend that an understanding reached, for example, on 1 January 2008 in relation to Spreads or a Fix on that date inflated costs in relation to FX Instruments throughout the relevant period and up to 15 October 2013? 299 Second, on what basis does the applicant contend that an alleged understanding that had as its subject matter, for example, the USD/EUR Affected Currency Pair increased Spreads on any, let alone all, other Affected Currency Pairs? 300 Third, given that FX rates are significantly determined by supply and demand, on what basis does the applicant contend that the alleged conduct resulted in a loss (as opposed to a benefit in some cases) in respect of every FX Instrument traded during the relevant period? 301 I agree with the respondents that these matters are not explained or addressed in the PASOC. 302 Generally, in light of the plethora of cumulative and alternative allegations of CAUs and giving effect, it is difficult from the generalised particulars provided in [40] to identify the alleged effect of any particular conduct on the alleged loss and damage suffered by the group. 303 Further, the consequences of the applicant's failure to identify a theory of loss or damage are acute in relation to the "WMR Fix Understanding(s)", the "ECB Fix Understanding(s)" and the "Stop Loss Understanding(s)", which involve alleged "activities to influence the price of the WMR Fix", "activities to influence the price of the ECB Fix" and the alleged "manipulate[tion of] Spot Rates to trigger Stop Loss Orders" respectively. These alleged CAUs, and their corresponding "giving effect" allegations, appear to involve complaints about directional trading activities. On their face, none of the allegations concern Spreads and it is not self-evident that an effect on the price of an ECB Fix or WMR Fix or the triggering of a Stop Loss Order would result in an increase in the costs of entering into FX Instruments in relation to any or all Affected Currency Pairs. 304 Moreover, if it is assumed that one of the many alternative allegations regarding those CAUs could be made good and it could be established that one or more of the respondents gave effect to the CAU with a relevant directional impact on price, it would follow that some members of the group may have financially benefited from the relevant conduct. 305 Now the applicant makes the following points. 306 The applicant says that causation and loss in high-volume market transaction cases are conventionally, indeed necessarily, matters for expert evidence. It is therefore not incumbent upon the applicant at this stage of the proceeding to further particularise the loss theory it intends to establish at trial. And it says that it is appropriate for such particulars, if required, to be provided following the preparation of expert evidence. 307 Nevertheless, the applicant says that it has articulated at a general level in its affidavit material additional elements of the causation and loss theory likely to be developed by the applicant and group members through expert evidence. In short, the applicant intends to establish through expert evidence that giving effect to each of the "Information Sharing and Trade Co-ordination Understanding(s)", the "WMR Fix Understanding(s)", the "ECB Fix Understanding(s)" and the "Stop Loss Order Understanding(s)" caused loss and damage to the applicant and group members in the form of price artificiality and spread widening. Further, the applicant intends to establish through expert evidence that giving effect to the "Spread Understanding(s)" caused loss and damage to the applicant and group members in the form of directly and indirectly caused spread widening. 308 But I agree with the respondents that the applicant should now plead its causation and loss theory. And the fact that expert evidence will ultimately be served does not alter that broad requirement. 309 Indeed, the problems created by the deficiencies in the PASOC on this aspect are exemplified by Ms Kimi Nishimura's seventh affidavit (at [31]), which states that the applicant proposes to rely upon a process described in delightfully vague terms as "triangular arbitrage". That process is not identified in the PASOC or properly explained in her affidavit. 310 Now I accept that the applicant will require discovery of additional materials, including the respondents' transaction data, as well as production of materials from third parties, in order to perform the kind of expert analysis and modelling it intends to rely upon at trial in support of its case on loss and damage. 311 But in my view, even at the present time the applicant should properly articulate at least the structural elements of its causation and loss and damage case. That may affect matters such as the ambit of any further document production to be given in the proceeding and the nature of the expert evidence to be called, including the relevant field of expertise required. Further and precise particulars can follow later.

GENERAL 312 Generally, the applicant has attempted to excuse deficiencies in the PASOC on the basis of an "information asymmetry" or lack of access to evidentiary materials. But in my view there are substantial problems with the PASOC in any event as I have set out. 313 I will refuse leave to replead in the terms presently sought by the applicant. I certify that the preceding three hundred and thirteen (313) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Beach.

SCHEDULE OF PARTIES VID 567 of 2019 Respondents Fourth Respondent: JPMORGAN CHASE BANK N.A. (ABN 43 074 112 011) Fifth Respondent: NATWEST MARKETS PLC (SC090312)

Pt IVA Trade Practices Act 1974(Cth)ss 4E, 5, 45, 45A, 44ZZRC, 44ZZRD, 44ZZRJ, 44ZZRK

Trade Practices Act 1974(Cth)

Competition and Consumer Act 2010(Cth)ss 4E, 5, 44ZZRC, 44ZZRD, 44ZZRJ, 44ZZRK

Federal Court of Australia Act 1976(Cth)ss 33H, 33J, 33ZB, Pt

The question of identification 25 Let me commence with the first point raised by UBS. 26 Paragraph (a) of the proposed group definition relevantly describes persons who or which "at any time during the period commencing on 1 January 2008 and concluding on 15 October 2013 (Relevant Period) were party to an FX Instrument or FX Instruments (other than Excluded Instruments) in relation to one or more of the Affected Currency Pairs which are or were Arranged in Australia". 27 Now in order to comprehend this aspect of the definition, it is necessary to concentrate upon some of the specific defined terms which I have already set out. 28 The PASOC defines "Arranged in Australia" as follows: Arranged in Australia means, in relation to an FX Instrument: 1. where the FX Instrument is entered into, whether orally, in writing, electronically or otherwise: (a) by the customer or their employee or agent while the customer, employee or agent (as the case may be) is in Australia; and/or (b) by the Dealer or their employee or agent while the Dealer, employee or agent (as the case may be) is in Australia: and/or 2. where the FX Instrument is entered into upon the execution of a Resting Order: (a) which order was placed, whether orally, in writing, electronically or otherwise by a customer or their employee or agent while the customer, employee or agent (as the case may be) is in Australia; and/or (b) which order was accepted, whether orally, in writing, electronically or otherwise by a Dealer or their employee or agent while the Dealer, employee or agent (as the case may be) is in Australia. 29 "FX Instruments" is defined to mean "Spots and Outright Forwards", which are in turn defined. "Dealer" is defined to mean "an individual or firm acting as a principal, rather than as an agent, who is engaged in the purchase and/or sale of currencies, and the quoting of prices for the purchase and/or sale of currencies, to customers in the Dealer's capacity as an FX market maker". "Resting Order" is defined as "an instruction from a customer to a Dealer to enter into an FX Instrument if specified conditions are met, including a Stop Loss Order", which is in turn defined. 30 Paragraph (b) of the group definition further requires that "by reason of the matters alleged in [paragraph (a)]" the person bought and/or sold currency during the relevant period to the value of at least the "Minimum Transaction Volume", being AUD500,000, calculated by reference to exchange rates set out in the definition of that term which I have not bothered to set out. 31 I should say at this point that in my reasons from hereon I will use the PASOC's defined terms unless I have indicated otherwise. 32 Now four aspects of the proposed group definition may be noted. 33 First, the group definition contains no residency criterion. I should say now that that is true, but in my view under Pt IVA non-residents can be group members. Now although the definition has no residency requirement, it requires that someone, whether the customer or Dealer, or their employee or agent, was "in Australia" when the FX Instrument was entered into or the Resting Order placed or accepted. 34 Second, the group definition applies to FX Instruments entered into or Resting Orders placed or accepted "whether orally, in writing, electronically or otherwise". Elsewhere, the PASOC identifies a range of different ways in which FX Instruments can be entered into, such as through sales desks and/or trading desks in various locations, through electronic communication networks, and through brokers including voice brokers. 35 Third, the group definition is not limited to FX Instruments arranged with Dealers who are respondents to this proceeding. It includes any individual or firm who fell within the definition of Dealer at the relevant time. 36 Fourth, the group definition is not limited to FX Instruments arranged during the relevant period. It merely requires that the person was "a party to" the FX Instrument in the relevant period. 37 By reason of these features, UBS says that the present definition is not one that enables persons to ascertain whether they are group members, even by making inquiries and with the assistance of a legal adviser. 38 To reinforce its criticisms, UBS posed the following hypothetical questions. 39 How is a person to ascertain the time at which they "entered" into an FX Instrument, bearing in mind the range of different ways in which FX Instruments could be entered into that I have mentioned, to enable them to ascertain whether they happened to be "in Australia" at that time, even assuming that they still had records of where they were at any particular point during the relevant period, being 2008 to 2013? 40 How is a person to ascertain whether the entity with which they were dealing fell within the definition of a Dealer at the relevant time? For instance, how are they to ascertain whether the individual or firm was acting as a principal rather than as an agent? And how are they to ascertain whether that individual or firm was acting in the capacity of an FX market maker? 41 How is a person to ascertain whether the Dealer, or the relevant employee or agent of the Dealer, was "in Australia" when the FX Instrument was "entered", assuming they can ascertain when it was "entered"? 42 Further, in relation to customers and Dealers that are bodies corporate, which can only act through their employees or agents, does the definition look to the domicile of the customer or Dealer or to the physical location of the particular employee or agent who executed the transaction? For example, a customer or Dealer might be domiciled in Australia but the employees or agents who executed the transaction might be physically located in Singapore. And what if there were several employees or agents involved in different countries? 43 Moreover, so UBS says, these inquiries may need to be undertaken by a person in respect of multiple FX Instruments and Dealers to ascertain whether they meet the Minimum Transaction Volume criterion to qualify as a group member. 44 In short, UBS says that the group definition is too broad and imprecise to enable a potential group member to determine whether they fall within it. It says that this is likely to preclude effective communication by way of notices with group members for opt out and other purposes, and the identification of who may be bound by any judgment. It says that it is also likely to prevent the identification of persons who are overlapping group members in ongoing foreign proceedings. 45 I would reject the criticisms of UBS on this aspect of the group definition. 46 In my view, each of the defined terms used in the group definition, being the terms "Affected Currency Pairs", "Arranged in Australia" (see also "Resting Order" and "Stop Loss Order"), "Dealer", "Excluded Instrument", "FX Instrument", "Minimum Transaction Volume" and "Relevant Period" that I have set out above are capable of objective identification or verification. 47 Now I accept that it will be necessary to have regard to the defined terms in order to ascertain whether a person is a group member, but this does not make the group definition vague or uncertain. 48 Further, as to the matters suggested by UBS as being incapable of identification by a potential group member, these should be readily ascertainable, particularly by recourse to relevant transaction records and the assistance of a legal adviser if necessary. 49 So, as the applicant submitted, potential group members should be able to readily ascertain by reference to independent recollection or their transaction records whether they entered into a particular FX Instrument during the relevant period whilst in Australia or with a Dealer in Australia. Further, potential group members should be able to ascertain, perhaps with the assistance of a legal adviser if required, whether the person or entity with whom they transacted falls within the definition of a "Dealer", particularly group members who are likely to have been regular or frequent participants in financial transactions of this type. 50 Further, the phrase "in Australia" in the definition of "Arranged in Australia" should be clear and should not give rise to any confusion in the context of corporate customers or Dealers. 51 Further, where a customer, including a corporate customer, entered into an FX Instrument through an employee or agent, the relevant objective question is whether that employee or agent was "in Australia" at the time. 52 Now UBS says that if the group definition is intended to look to the physical location of the particular employee or agent who executed the transaction, this is not clear from the group definition itself. Further, UBS points out the scenario in which there might have been several employees or agents involved in different countries. 53 There was debate before me from the other respondents concerning "Arranged in Australia" and the question of the location of the Dealer or their employee or agent. Mr Cameron Moore SC for the fifth respondent (NatWest) posed the question: And so the example that was given was a person located in Singapore, a customer located in Singapore who dealt with a person in Sydney, and then that person in Sydney then placed a trade with a desk in New York. Mr Quinn says, nevertheless the person the customer is dealing with is in Sydney, therefore the dealer is in Australia. And so far as it goes, that's clear enough because one can then say, "Well, where is the person you're dealing with located?" But what is not clear from the definition is the reverse situation. Assume a person in Singapore places a trade with somebody in New York. So the person in Singapore says, "I'm dealing with someone in New York, I can't see any connection with Australia here". But the firm with which they are dealing with in New York happens to also have a small outpost in Sydney. Is that firm then a firm in Australia? 54 In my view, this would not be covered if that arm was not doing the relevant dealing. The definition is to be read as picking up trades that, in effect, involve dealing with someone in Australia. 55 Now I also accept that computer trading adds to the complexity of making the relevant determination. But this cannot be avoided. 56 In summary, I do not accept the respondents' criticisms. 57 Let me now say something about UBS' residency requirement in its proposed formulation. 58 I agree with the applicant that there is no warrant for limiting the group to persons who were ordinarily resident or carrying on business in Australia. There are neither jurisdictional issues nor demonstrable group identification difficulties that necessarily require such a narrowing of the group definition. 59 First, the Court possesses both jurisdiction over the respondents and subject matter jurisdiction over the proceeding. In such circumstances, it is empowered under Pt IVA to determine the claims of the applicant and all group members irrespective of whether such group members ordinarily resided or carried on business in Australia. 60 Second, any comparison with the group definition question in the vitamins cartel class action litigation (Bray v F Hoffman-La Roche Ltd [2002] FCA 1405 at [36] per Merkel J) is inapposite. The difficulty in that case of identifying casual visitors to Australia who purchased a relevant vitamin or product containing such a vitamin does not arise with and has no analogy with the entry into of FX Instruments which involve documented financial transactions capable of being readily identified. In any event, the applicant in the vitamins cartel class action agreed to confine the group definition, rather than being compelled to do so by any application of principle. 61 Third, in any event there can be complexity in determining whether a group member was "ordinarily resident or carrying on business in Australia" at a given point in time. 62 Fourth, it cannot be assumed that a residency requirement would have only a slight effect on the magnitude of rights being pursued through the proceeding as now constituted. As Mr Quinn QC pointed out, given that the Global FX Market operated on a 24-hour basis revolving through the different time zones, limiting the group definition with a residency criterion may unfairly shut out substantial numbers of foreign residents who traded on the Australian segment of that market when it was the only segment open for trade, and who may not have access to redress in any other proceeding.

Group members and foreign proceedings 63 Let me now address the second main point of UBS concerning the question of overlap involving settled and current foreign proceedings. 64 The group member definition refers to group members who "were party to an FX Instrument or Instruments (other than Excluded Instruments)". "Excluded Instruments" are defined as an FX Instrument which is the subject of a release forming part of the settlement in certain settled foreign proceedings, namely: (a) the US class action proceeding known as In Re Foreign Exchange Benchmark Rates Antitrust Litigation, No. 1 1:13-cv-07789-LGS (District Court for the Southern District of New York) (US Forex proceeding); (b) the Canadian class action proceeding known as Mancinelli v Royal Bank of Canada et al, case CV-15-536174 (Superior Court of Ontario); and (c) the Canadian class action proceeding known as Béland v Royal Bank of Canada et al. case 200-06-000189-152 (Superior Court of Quebec). 65 The effect of this exclusion is to prevent persons from claiming in this proceeding for loss in respect of which they have already been compensated in the US Forex proceeding and the Mancinelli and Béland class actions. 66 I will turn to the desirability of this exclusion later, which UBS criticised and the applicant in oral argument sought to bargain away with me. 67 UBS complains that the applicant has omitted to exclude from the group definition persons who are continuing to pursue materially similar claims against the respondents in certain ongoing foreign proceedings, namely: (a) the US class action proceeding known as Nypl v JP Morgan Chase & Co, No 1:15-cv-09300-LGS (District Court for the Southern District of New York); (b) the US class action proceeding known as Contant v Bank of America Corporation, No 17-cv-03139-LGS (District Court for the Southern District of New York); and (c) the US class action proceeding known as Allianz Global Investors Gmbh v Bank of America Corporation, No 1:18-cv-10364-LGS (District Court for the Southern District of New York). 68 UBS also says that the applicant has failed to exclude from the group definition persons who are party to "any other ongoing proceeding advancing claims for loss or damage in respect of their entry into an FX Instrument" unless such persons also entered into an FX Instrument that is the subject of this proceeding, but that is not the subject of the claims being advanced in such "other proceedings". 69 UBS' alternative form of wording for the group description was proffered as an apparently helpful embodiment of UBS' position on this aspect. 70 UBS says that overlapping group members ought not to remain in multiple proceedings and referred to Perera v GetSwift Ltd (2018) 263 FCR 92 at [150] per Middleton, Murphy and Beach JJ. Now whilst GetSwift was dealing with multiple proceedings before the same Court, UBS says that the principle is apt to apply to multiple proceedings before a combination of Australian and foreign courts. 71 UBS also prayed in aid what Bell P said in Wigmans v AMP Ltd (2019) 373 ALR 323 at [56]: In the transnational context, the policy to avoid a multiplicity of proceedings is also very strong: see, for example, [Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd [2019] NSWCA 61; (2019) 367 ALR 146] at [81]-[89]; Incitec Ltd v Alkimos Shipping Corp (2004) 138 FCR 496; [2004] FCA 698 at [53] (Incitec) and the cases there cited. It is informed in part, but by no means exclusively, by concern for what is sometimes referred to as international judicial comity. More powerfully still, it is informed by "the deep and strong antipathy of courts for the promotion of circumstances allowing for inconsistent curial approaches to the same dispute": Incitec at [53]. That having been said, it will not always be possible or appropriate to avoid a multiplicity of proceedings, as the decision of the Full Court of the Federal Court in TS Production LLC v Drew Pictures Pty Ltd (2008) 172 FCR 433; [2008] FCAFC 194 (TS Production) illustrates. 72 Further, UBS says that the applicant's proposal to limit the definition of "Excluded Instrument" to FX Instruments that are the subject of releases in the settled proceedings fails to address the ongoing foreign proceedings in which materially similar claims are made against the present respondents on behalf of classes that may well include group members in the present proceeding. 73 Now UBS helpfully provided me with a table which relevantly summarised the three ongoing proceedings in the US, being the Nypl, Contant and Allianz proceedings, including the forum, the description of the class, the defendants, the nature of the claims, and the status of each proceeding. I should note that the ongoing US proceedings are separate from the US Forex proceeding, which as I have mentioned has been settled and is referred to in the definition of "Excluded Instruments". 74 Now in the Nypl class action, the class includes "[a]ll consumers and businesses in the United States who directly purchased supracompetitive foreign currency at Benchmark exchange rates from Defendants and their co-conspirators for their own end use at least since January 2007 to and including class certification, herein". UBS says that if such a consumer or business happened to do so whilst either they or the Dealer (or the relevant employee or agent of either) was in Australia, and were a party to the relevant FX Instruments during the relevant period, and met the Minimum Transaction Volume, they would also be a group member in my proceeding. 75 In the Contant class action, the proposed settlement class relevantly includes "all persons who between 1 December 2007 and 31 December 2013 (inclusive) "indirectly" purchased an FX Instrument from a Defendant or co-conspirator [in or while domiciled in several named US states] by entering into an FX Instrument with a member of the Direct Settlement Class where the Direct Settlement Class member entered into the FX Instrument directly with a Defendant or Co-conspirator". The "Direct Settlement Class" refers to the class in the US Forex proceeding. Again, UBS says that if such a person happened to do so whilst either they or the Dealer (or the relevant employee or agent of either) was in Australia, and were a party to the relevant FX Instruments during the relevant period, and met the Minimum Transaction Volume, they would also be a group member in my proceeding. 76 In the Allianz proceeding, the plaintiffs consist of entities who opted out of the settlement class in the US Forex proceeding, who engaged in FX transactions with the defendants between 2003 and 2013 that occurred in the United States "by way of the Plaintiff and/or its counterparty operating in the United States". Again, UBS says that if such persons happened to transact whilst either they or the Dealer (or the relevant employee or agent of either) was in Australia, were a party to the relevant FX Instruments during the relevant period, and met the Minimum Transaction Volume, they would also be a group member in my proceeding. 77 In addition to the issue of the ongoing foreign proceedings, UBS says that there is a further issue raised by the applicant's proposal to formulate the exclusion relating to settled overseas proceedings by reference to "an FX Instrument which is the subject of a release forming part of the settlement in" those proceedings, rather than by reference to settling group members in those proceedings. In this regard it makes the following points. 78 First, it says that it is a fundamental concept under Pt IVA that a group comprises persons and not claims of persons. Thus, a person cannot be a group member only "to an extent"; a person is either a group member or not. So, the purported bifurcation of claims of a group member into different proceedings is contrary to Pt IVA. The applicant's proposed exclusion by reference to released FX Instruments rather than settling group members transgresses this principle. Its effect would be that if a person were a party to sufficient relevant FX Instruments other than Excluded Instruments, they would be a group member in this proceeding, despite the fact that they were also a group member, and provided releases, in one of the settled proceedings. 79 Second, UBS says that even if the first point were not accepted, it is unclear how a person would in any event be able to distinguish between an Excluded Instrument and another FX Instrument for the purpose of trying to ascertain group membership in this proceeding. Unsurprisingly, the releases provided in the settlements of the US Forex proceeding and the two settled Canadian proceedings, Mancinelli and Béland, do not identify particular FX Instruments; rather, the releases are general ones, which are expressed by reference to "released claims". Again, the proposed exclusion by reference to released FX Instruments is too imprecise to enable a person, even with the assistance of a legal adviser and after making inquiries, to determine whether they are a group member in my proceeding. 80 I would reject the criticisms of UBS. Let me park for the moment the "Excluded Instruments" question and deal with UBS' other points which it has sought to address in its alternative formulation. 81 In my view, the group definition is not deficient by reason of it potentially encompassing some overlapping group members who may also fall within the class definition in extant foreign proceedings. 82 First, the observations in GetSwift and in Wigmans relied on by UBS, were made in the context of the now all too common phenomenon of multiple Australian proceedings commenced against the same respondent(s) with respect to the same or similar subject matter and involving a substantial number of overlapping group members, where the Court is called upon to stay one or more of those multiple proceedings or consolidate or otherwise jointly manage them. But such observations regarding the issue of overlapping group members in that particular context cannot be translocated to the different question of whether the group definition in the only extant Australian proceeding making the present allegations satisfies the requirements of s 33H(1)(a). There are no relevant competing proceedings before me or any other Australian court giving rise to the associated case management, representational and funding issues which are the central concerns of cases such as Getswift and Wigmans. 83 Further, Bell P's policy observations in Wigmans concerning transnational litigation seem to me to be unobjectionable. So much may be accepted. But where does this all go? I can eliminate any duplication at the appropriate time in the proceeding before me. Further and in any event, if any group member is the subject of any release in a foreign proceeding, that can ultimately be pleaded in bar at an appropriate time before me (or someone else) when any s 33R issue arises. Further, if any group member is the subject of a judicial determination in a foreign proceeding, then the relevant issue estoppel may be pleaded at an appropriate time. In short, I do not need to anticipate and deal with these matters at this time in terms of formulating the boundaries and content of the group description. 84 Second, unlike the competing domestic proceedings in GetSwift and Wigmans, as the applicant has pointed out, there are considerable differences between the nature and scope of the proceeding before me and each of the three ongoing foreign proceedings. 85 In the Nypl proceeding Barclays Bank Plc (the second respondent before me) is not named as a defendant. Further, the class definition refers to "[a]ll consumers and businesses in the United States" and does not refer to any group members entering into FX Instruments in Australia or with a Dealer in Australia. Further, the class definition refers to consumers and businesses who "directly purchased supracompetitive foreign currency at Benchmark exchange rates from Defendants and their co-conspirators for their own end use at least since 1 January 2007 to and including class certification, herein", rather than persons entering into an FX Instrument with a Dealer. Further, the plaintiffs allege, in the context of asserting that the Southern District of New York is an appropriate venue for the proceeding, that a substantial part of the events giving rise to the plaintiffs' claims occurred in that District, a substantial portion of the affected interstate trade and commerce was carried out in that District, and one or more of the defendants has an agent, maintains an office or does business in that District. But contrary to the applicant's submissions, I do accept that there is some overlap. 86 Further, in the Contant proceeding the Royal Bank of Scotland Plc (RBS) (now NatWest, the fifth respondent before me) is not named as a defendant. Further, claims are brought on behalf of the New York class, the Arizona class, the Florida class, the Illinois class, the Massachusetts class, and the Minnesota class, each being confined to all persons and entities who indirectly purchased an "FX Instrument" from a "Defendant or co-conspirator" "in [the relevant state] and/or while domiciled in [the relevant state]". Further, claims are also brought on behalf of the California class and the North Carolina class , each being confined to all persons and entities who indirectly purchased an "FX Instrument" from a "Defendant or co-conspirator" "and were thereby injured in [the relevant State]". An "FX Instrument" is defined as any FX spot transaction, forward, swap, future, option, or any other FX transaction or instrument the trading or settlement value of which is related in any way to FX rates. Further, the claim expressly excludes "all indirect purchases of FX Instruments where the direct purchaser was operating outside the U.S. at the time the direct purchase was made and the purchase was made with the foreign desk of a Defendant". But this exclusion does not apply where the direct purchaser was operating in the United States. And such persons could be caught by the present group definition. Further, the plaintiffs allege (in the context of asserting that the Southern District of New York is an appropriate venue for the proceeding) that a substantial part of the events giving rise to the plaintiffs' claims occurred in that District, and a substantial portion of the affected interstate trade and commerce had been carried out in that District. 87 Further, in the Allianz proceeding the plaintiffs comprise persons who between 2003 and 2013 entered into FX transactions with the defendants, including FX spot, forward, option, and swap and futures transactions, that occurred in the United States, by way of either the plaintiff or its counterparty operating in the United States. Further, the plaintiffs allege, in the context of asserting that the Southern District of New York is an appropriate venue for the proceeding, that a substantial part of the events or omissions giving rise to these claims occurred in that District; further, a substantial portion of the affected interstate trade and commerce had been carried out in that District. 88 In summary, although there may be some overlap, these three ongoing US proceedings will not necessarily involve a substantial overlap in group membership or claims. Further, to the extent that any overlapping group membership raises the spectre of double recovery, that issue can be managed by me at a later stage of this proceeding. Further, in my view there is no need to exclude from the group definition persons with purportedly overlapping claims in UBS' defined "Settled Actions", "Ongoing Actions" or "any other proceedings". 89 More generally, the scope of any overlap in claims is presently uncertain. An abstract exclusion without proper analysis of the existence, nature and extent of any overlap is inappropriate. In those circumstances, it is premature to exclude group members from this proceeding on the basis that there is a possibility of unidentified overlap with claims in foreign proceedings, particularly where they may not even result in any redress to those group members. 90 Let me deal further with the "Excluded Instruments" question, although the applicant now seems prepared to bargain it away. 91 Relevantly, in my view this "Excluded Instruments" carve-out does not transgress the requirement that the group definition identify persons rather than claims. Relevantly, the group definition in the PASOC identifies persons on whose behalf this proceeding is brought notwithstanding the "Excluded Instruments" exclusion. 92 Further, the group definition in terms does not commit the "to an extent" vice. The observation by Beech-Jones J in Hassid v Queensland Bulk Water Supply Authority t/as Seqwater [2017] NSWSC 599 at [23] that "[a] person is either a group member or not" was made in the context of a sub-paragraph of a group definition which provided that the group members were "group members as that term is defined in the [relevant] proceedings but only to the extent of any claim or claims they have for pure economic loss within sub-paragraph c) above". But in the PASOC, specific group members are identified without any such limitation. 93 Further, the applicant has commenced a single Pt IVA proceeding which seeks to prevent double recovery with respect to claims brought in foreign jurisdictions that have been the subject of settlement agreements. But persons who had a portion of their overall loss from FX transactions compensated in a settled foreign proceeding are not prevented from seeking to vindicate in this jurisdiction claims for different losses arising out of different FX transactions. 94 Further, no practical difficulty arises on the question of identification. 95 The definition of "Class Members" in the settlement agreements in the US Forex proceeding includes geographical parameters linked to the US and the definition of "Released Claims" expressly excludes "claims based upon transactions executed solely outside the United States and arising under foreign laws belonging to any Releasing Party or Person that is domiciled outside the United States". 96 The definition of the "Settlement Class[es]" in the settlement agreements in the Mancinelli and Béland class actions referred to in the "Excluded Instruments" definition include geographical parameters linked to Canada (including Quebec); and the definition of "Released Claims" in the UBS settlement agreements in those proceedings expressly exclude "claims based upon transactions executed solely outside of Canada and arising under foreign laws belonging to any Releasing Party or Person that is domiciled outside of Canada". 97 Further, if there is an overlap in any event, as I have indicated it is for UBS to assert in its defence that any claims in this proceeding have already been compromised in another proceeding. 98 In summary, I see little wrong with the applicant's "Excluded Instruments" carve-out. 99 Now during the oral hearing, it became apparent to the applicant that it might not need such a carve-out. It appeared to appreciate that if any claim of a group member had been compromised by a settlement in a foreign proceeding, this was a matter for a respondent to plead and prove rather than anticipating the whole question by a group definition carve-out. 100 But I am agnostic as to whether the carve-out should remain. I will leave it to the applicant to make a choice as to whether it wants that carve-out, once other pleading questions have been resolved, in any later versions of the originating application and the statement of claim. But to include such a carve-out does not in my view give rise to any real s 33H(1)(a) problem. 101 Let me deal with one other lesser point before moving on to the respondents' main attack.

J Wisbey & Associates Pty Ltd v UBS AG

At a glance

Court

Decision date

Before

Source

Judgment (19 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (24)

Cited By (4)