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.