J Wisbey & Associates Pty Ltd v UBS AG - [2024] FCA 147 - FCA 2024 case summary — Zoe

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J Wisbey & Associates Pty Ltd v UBS AG

[2024] FCA 147

Federal Court of Australia|2024-02-27|Before: Ms J, Mr J, Mr P, Beach J

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Source facts

Court

Federal Court of Australia

Decision date

2024-02-27

Before

Ms J, Mr J, Mr P, Beach J

Source

Original judgment source is linked above.

Judgment (18 paragraphs)

[1]

Within 14 days of the date of these orders, the parties file and serve minutes of proposed orders to give effect to these reasons.
Liberty to apply Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

[2]

BEACH J: 1 This representative proceeding concerns alleged cartel conduct by the respondents involving foreign currency spot and forward transactions; the proceeding is an unfunded open class proceeding. 2 I have previously discussed the nature of the proceedings in J Wisbey & Associates Pty Ltd v UBS AG [2021] FCA 36 at [6] to [7], [26] to [30], [64], [65], and [123]. 3 The proceedings concern a claim for damages in respect of an alleged arrangement or understanding between the respondents to cooperate with each other in relation to trading in FX Instruments by sharing non-public information, coordinating their trading and keeping their conduct confidential during the period from 1 January 2008 to 15 October 2013 (relevant period). 4 The current version of the pleadings defines group members broadly as being (subject to certain limited exclusions) persons who or which: (a) at any time during the relevant period were party to an FX instrument in relation to one or more affected currency pairs which was or were arranged in Australia; and (b) by reason of (a), bought or sold currency during the relevant period to the total value of at least AUD500,000; and (c) suffered loss and damage by reason of the conduct of one or more of the respondents as pleaded. 5 "Arranged in Australia" is defined as meaning where the FX instrument is entered into whilst the customer or the dealer, or their employee or agent, is in Australia, or, if the FX instrument is entered into upon the execution of a resting order, where the resting order was either placed or accepted whilst the customer or the dealer, or their employee or agent, is in Australia. A dealer includes third parties who act as a principal in the purchase and sale of currencies and is not confined to the respondents to the proceedings. 6 As a consequence, group members include persons who were not customers of any of the respondents. 7 The five respondents, who are various international financial institutions, are said to carry on global businesses of dealing in FX instruments including in Australia. It is said that they are players in a global FX market, which comprises global trading centres including Australia, and also players in a separate Australian FX market for such instruments. 8 Now the FX instruments that I am particularly concerned with come in two flavours. One type concerns what has been described as a "spot". A "spot" is an agreement to exchange sums of different currencies at an agreed-on exchange rate on a value date that is within two bank business days' of the agreement being struck. The other type is an "outright forward". There are two differences as compared with a "spot". The first difference is that the value date must be more than two bank business days' ahead. The other aspect, given that I am concerned with "outright forwards", is that the derivatives here do not include non-deliverable forwards or contracts for difference. 9 The applicant's case is based upon alleged contraventions of: (a) ss 45(2)(a)(ii) and 45(2)(b)(ii) of the Trade Practices Act 1974 (Cth) (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 Competition and Consumer Act 2010 (Cth) (CCA) (as applicable), together with s 44ZZRD, on and following that date. 10 I should also say by way of introduction that there have been related foreign proceedings being: (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). 11 Relevantly to the present context, the US Forex proceeding and Mancinelli proceeding have been settled. I will return to these proceedings later. 12 The respondents' interlocutory application seeks orders with respect to facilitating opt out and a registration process for group members in this proceeding. These orders are said to be required principally to enable the parties to conduct a mediation, with the aim of doing so well before having to incur the cost of preparing detailed and expensive expert evidence. 13 The respondents say that the orders should be made for four reasons. 14 First, the proceeding has been on foot since May 2019. It is at a relatively progressed stage, with pleadings closed and discovery essentially complete. It is said that it is appropriate that opt out and mediation occur now, particularly when the proceeding is factually complex, involving huge volumes of documents and data. It is said that conducting a mediation now would provide an opportunity to avoid the likely immense cost of preparing expert evidence and conducting a lengthy trial. 15 Second, it is said that whilst it is now appropriate to mediate, it is not immediately practical, because it is unknown how many group members exist, the proportion of those who would participate in any settlement and the potential value of their claims. So, it is said that a registration process is necessary for facilitating a productive mediation. 16 Third, it is said that there is no prejudice to group members in conducting a registration process now when such a process inevitably will be required if a settlement is reached and approved in the future. 17 Fourth, it is said that a registration process is necessary to provide an indication of the potential quantum at issue and so to provide a basis for assessing the proportionality of the costs of the proceeding. 18 Now the applicant opposes the orders sought and has relied upon two affidavits of Ms Kimi Nishimura, the solicitor for the applicant, and an affidavit of Mr Michael Lange, whose position I will explain later. 19 But despite the applicant's opposition and its evidence, there is some significant common ground relevant to the orders sought. 20 First, the precise number and identity of the group members in this proceeding is unknown, and the identity of a significant proportion of group members is not known or ascertainable by the parties. One of the circumstances where registration orders are appropriate is where they are necessary to estimate class-wide damages because the nature of claimant losses requires individual assessment and class-wide assessment cannot be reliably estimated. 21 Second, the costs associated with the preparation of expert evidence in this proceeding will be significant, as will the costs of preparing for and conducting the initial trial of the applicant's claim and the common questions. 22 Third, now is an appropriate point in the proceeding for mediation to occur. The pleadings have closed. Discovery to date has been extensive, as has been canvassed in previous hearings before me. No trial evidence has yet been served in these proceedings. 23 Fourth, if registration orders are not made now, then registration and class closure will be necessary if a settlement is reached at any mediation that occurs in the future and, if a settlement is not reached at mediation, opt out will then be pursued by the applicant with the associated costs of identifying group members and communicating with them. 24 Now in my view, and for the reasons that I will elaborate on, the definition of group member is such that it is not possible for the respondents to reliably estimate either the size of the potential class or the quantum of the potential aggregate claim value. And the respondents neither know the likely participation rates of group members nor the identity or potential claim value of those group members likely to participate. 25 As the respondents correctly submit, registration of group members will enable the likely participating class size to become known, and will see the provision of some particulars of the participating group member claims, which will provide the parties with some reliable information so that they have the best chance of resolving the proceedings before incurring significant legal costs in relation to the preparation of evidence. 26 More generally, the parties presently lack an objective or reliable basis upon which to assess the quantum of group members' claims. 27 Further, there is a substantial issue about the extent to which group members' claims in this matter are barred by reason of their participation in foreign settlements in the proceedings that I have referred to earlier. Accordingly, registration is necessary to address the problem of double-recovery. 28 Let me now turn to the detail.

[3]

Nature of the proposed orders sought 29 Pursuant to s 33J(1) and s 33ZF of the Federal Court of Australia Act 1976 (Cth) (FCA Act), prayer 1 of the interlocutory application seeks an order fixing an opt out date. It also seeks an order fixing the same date as the date by which group members may register to participate in the proceeding. 30 Prayers 2 and 3 seek orders pursuant to s 33X approving three kinds of notices to group members regarding their right to opt out of the proceeding and the fact that upon any settlement, the parties will seek an order which, if made, has the effect of precluding group members who have not registered or opted out from seeking any benefit pursuant to any settlement without the leave of the Court. 31 The first notice (the customer notice) is to be sent by a distribution agent to persons on customer lists to be compiled by each respondent (prayers 4 and 5) or by each respondent to customers for whom foreign bank secrecy laws or data privacy laws preclude their details from being disclosed (prayer 6). The customer notice includes a form by which group members may register their participation in the proceeding. It asks group members to identify key details including with respect to their qualifying trades, whether they or their dealer made the trades while located in Australia and whether they have participated in an overseas settlement. Such details are necessary for identifying whether the person is a group member and the scope of their potential claim - but have been formulated with a view to not making registration unduly onerous. 32 The second notice (the general notice) is the same as the customer notice, save that it does not include the first two pages. It is to be published on the website of the applicant's solicitors and also sent by the applicant's solicitors to persons who have already registered their interest in the proceeding with the applicant's solicitors (prayers 7 and 8). 33 The third notice (the press notice) is to be published in various newspapers by the applicant's solicitors (prayer 9). It is a short form notice appropriate for publication in a newspaper. 34 The remaining prayers for relief provide for the payment of the costs of the distribution process (prayers 11 and 12), confidentiality of the respondents' customer lists (prayer 13), the mechanics for the receipt of opt out notices and claim registration (prayers 14 to 21) and the date by which the parties must conduct a private mediation (prayer 22).

[4]

The current pleading 35 Let me say something about the amended statement of claim and set out some of the principal aspects and allegations, but shorn of the detailed particulars. 36 The definition of the class is contained in [1] which says: This proceeding is commenced as a representative proceeding pursuant to Part IVA of the Federal Court of Australia Act 1976 (Cth) by the Applicant on its own behalf and on behalf of all persons who or which: (a) 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 in relation to one or more of the Affected Currency Pairs which was or were Arranged in Australia; (b) by reason of the matters alleged in subparagraph 1(a) above, bought and/or sold currency during the Relevant Period to the total value equal to or more than the Minimum Transaction Volume; (c) suffered loss or damage by reason of the conduct of one or more of the Respondents as pleaded in this Amended Statement of Claim; (d) are not, and were not at any material time: (i) any of: (A) the Respondents; (B) the Other Cartel Participants as defined in this Amended Statement of Claim; (C) a related body corporate of any of the entities referred to in (A) or (B) within the meaning of s 4A of the Trade Practices Act 1974 (Cth) (TPA) and the Competition and Consumer Act 2010 (Cth) (CCA) (as applicable), save where it was party to an FX Instrument or FX Instruments in accordance with subparagraphs 1(a) and (b) above in its capacity as a custodian, nominee, or trustee for a person who was not one of the entities referred to in (A), (B) or (C); (ii) a director or officer or a close associate of any of the entities referred to in (i) within the meaning of s 9 of the Corporations Act 2001 (Cth) (CA); (iii) a Justice, Registrar, District Registrar or Deputy District Registrar of the Federal Court of Australia or the High Court of Australia; or (iv) an officer or employee of Maurice Blackburn Lawyers, or a legal representative engaged by Maurice Blackburn Lawyers in this proceeding, (Group Members). 37 There are relevant definitions contained in the prefatory section as follows: Affected Currency Pairs means the Australian dollar (AUD), British pound (GBP), Euro (EUR), Japanese yen (JPY), New Zealand dollar (NZD) or the US dollar (USD) paired with another currency from any of the following: AUD, Brazilian real (BRL), GBP, Canadian dollar (CAD), Chinese yuan (CNY), Czech koruna (CZK), EUR, Hong Kong dollar (HKD), Hungarian forint (HUF), Indian rupee (INR), Indonesian rupiah (IDR), Israeli shekel (ILS), JPY, Malaysian ringgit (MYR), Mexican peso (MXN), NZD, Norwegian krone (NOK), Polish zloty (PLN), Romanian leu (RON), Russian ruble (RUB), Singapore dollar (SGD), South African rand (ZAR), South Korean won (KRW), Swedish krona (SEK), Swiss franc (CHF), Taiwan dollar (TWD), Thai baht (THB), Turkish lira (TRY). Arranged in Australia means, in relation to an FX Instrument: (a) where the FX Instrument is entered into, whether orally, in writing, electronically or otherwise: (i) by the customer or their employee or agent while the customer, employee or agent (as the case may be) is in Australia; and/or (ii) by the Dealer or their employee or agent while the Dealer, employee or agent (as the case may be) is in Australia; and/or (b) where the FX Instrument is entered into upon the execution of a Resting Order: (i) 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 (ii) 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. Australian FX Market has the meaning set out in paragraph 17. CA has the meaning set out in paragraph 1(d)(ii). CCA has the meaning set out in paragraph 1(d)(i)(C). Coordinated Trading has the meaning set out in paragraph 23(a)(ii). Concealment has the meaning set out in paragraph 23(b). Customers has the meaning set out in paragraph 9. Dealer means an individual or firm acting as a principal, rather than as an agent, in the purchase and sale of currencies, and the quoting of prices for the purchase and sale of currencies, to customers in the Dealer's capacity as an FX market maker. ECB Fix is the benchmark exchange rate for about 32 FX currencies traded against the EUR, published daily by the European Central Bank, including Spot Rates for 32 currencies actively traded against the EUR, which is determined as at 2.15pm Central Europe Time (1.15pm London, United Kingdom, time) by capturing the data from currency bids and offers by market participants on or around that time. Electronic Communication Network means an electronic system that facilitates the trade in Spot and Outright Forwards, including a "single bank" electronic platform, a "multi bank" electronic platform, a remittance provider electronic platform, an automated programming interface, a request for quote system and an electronic matching engine. FX means foreign exchange, being the purchase or sale of a currency against the sale or purchase of another currency. FX Instruments means Spots and Outright Forwards. FX Chatroom Understanding has the meaning set out in paragraph 25. FX Chatroom Understanding Provision has the meaning set out in paragraph 25. FX Understanding has the meaning set out in paragraph 23. FX Understanding Provision has the meaning set out in paragraph 23. Global FX Market has the meaning set out in paragraph 12. Global Trading Centres has the meaning set out in paragraph 9. Minimum Transaction Volume means AUD 500,000, calculated by reference to: (a) where an individual transaction involves AUD, the AUD amount; and (b) where an individual transaction does not involve AUD, the higher of the AUD amount resulting from applying the exchange rate in the table below to each currency in the transaction. [table omitted] Other Banks has the meaning set out in paragraph 21. Other Cartel Participants has the meaning set out in particular (iv) to paragraph 23. Outright Forward means an agreement to exchange sums of currency at an agreed on exchange rate (cash settlement) on a value date that will be in more than two bank business days' time, but does not include non deliverable forwards or contracts for difference. Overt Acts Spreadsheet has the meaning set out in particular (i) to paragraph 23. Related Bodies Corporate has the meaning set out in paragraph 20. Relevant Period has the meaning set out in paragraph 1(a). Resting Order means an instruction from a customer to a Dealer to enter into an FX Instrument if specified conditions are met. Shared Information has the meaning set out in paragraph 23(a). Spot means an agreement to exchange sums of currency at an agreed on exchange rate (cash settlement) on a value date that is within two bank business days' time. Spot Rate means the exchange rate for a currency pair applicable at any single point in time. Spread means the difference between the bid and ask price for a currency. Stop Loss Order means an instruction from a customer to a Dealer to buy or sell a volume of currency if the currency is trading at a specific rate, and is ordinarily placed at a rate that will protect the customer from the market moving against their interest. TPA has the meaning set out in paragraph 1(d)(i)(C). WMR Fix means the benchmark exchange rate for various FX currencies published daily by WM/Reuters, which is determined as at 4.00pm London, United Kingdom, time by capturing the data from currency bids and offers by market participants in the 30 seconds at either side of 4.00pm. 38 Paragraphs [9] to [18] plead as follows: C. The Global FX Market 9. During the Relevant Period, there was demand for FX Instruments from persons and entities (collectively, customers) in various locations (collectively, Global Trading Centres) throughout: (a) Europe; (b) North America; (c) South America; (d) Asia; (e) Africa; (f) Australia; and (g) New Zealand. 10. During the Relevant Period, Dealers in Global Trading Centres supplied, and/or offered to supply, FX Instruments to customers in the same or different Global Trading Centres, including in Australia, through inter alia: (a) FX sales desks and/or trading desks located in the same or different Global Trading Centres as a customer, including in Australia; and (b) Electronic Communication Networks that connected customers and Dealers in the same or different Global Trading Centres, including Electronic Communication Networks accessible in Australia. 11. During the Relevant Period: (a) all currency the subject of any FX Instrument anywhere in any of the Global Trading Centres was fungible; (b) 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; (c) 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; (d) 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; (e) price was the sole, or the primary, determinant of choice of Dealer for customers seeking to enter into an FX Instrument with respect to any currency pair of a given volume anywhere in any of the Global Trading Centres; and (f) Dealers competed on price in relation to FX Instruments supplied and/or offered to be supplied to customers in different Global Trading Centres, including in Australia. 12. By reason of the matters alleged in paragraphs 9 to 11 above, during the Relevant Period, there was a global market for the supply of FX Instruments by Dealers to customers (Global FX Market). 13. The Global FX Market was a market within the meaning of s 4E of the TPA and s 4E of the CCA. D. The Australian FX Market 14. During the Relevant Period, there was demand: (a) for FX Instruments from customers located in Australia to acquire FX Instruments from Dealers located in Australia or elsewhere; and (b) from customers in and outside Australia for FX Instruments supplied or offered to be supplied by Dealers located in Australia. 15. During the Relevant Period: (a) Dealers supplied and/or offered to supply FX Instruments to customers in Australia through, inter alia: (i) FX sales and/or trading desks in Australia and/or outside Australia; and (ii) Electronic Communication Networks that were accessible in Australia. (b) Dealers in Australia supplied and/or offered to supply FX Instruments to customers in and outside Australia through, inter alia: (i) FX sales and/or trading desks located in Australia; and (ii) Electronic Communication Networks that connected Dealers located in Australia to customers located in and/or outside Australia. 16. During the Relevant Period: (a) all currency the subject of any FX Instrument supplied or offered to be supplied by a Dealer in Australia or by a Dealer to a customer in Australia was fungible; (b) a Spot with respect to a currency pair of a specific volume supplied or offered to be supplied by a Dealer in Australia or by a Dealer to a customer in Australia was substitutable for any other Spot with respect to the same currency pair of the same volume supplied or offered to be supplied by another Dealer in Australia or by another Dealer to a customer in Australia; (c) an Outright Forward with respect to a currency pair of a specific volume supplied or offered to be supplied by a Dealer in Australia or by a Dealer to a customer in Australia was substitutable for any other Outright Forward with respect to the same currency pair of the same volume supplied or offered to be supplied by another Dealer in Australia or by another Dealer to a customer in Australia; (d) a Dealer supplying or offering to supply an FX Instrument to a customer in 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 supplying or offering to supply the same type of FX Instrument in respect of the same currency pair of the same volume; (e) a Dealer in Australia supplying 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 or offering to supply the same type of FX Instrument in respect of the same currency pair of the same volume; (f) price was the sole, or the primary, determinant of choice of Dealer for: (i) customers in Australia seeking to enter into an FX Instrument with respect to any currency pair of a given volume; and (ii) customers in and outside Australia entering into an FX Instrument with respect to any currency pair of a given volume with a Dealer in Australia; and (g) Dealers: (i) in Australia competed on price with respect to FX Instruments supplied or offered to be supplied to customers in and outside Australia; and (ii) competed on price with respect to FX Instruments supplied or offered to be supplied to customers in Australia. 17. By reason of the matters alleged in paragraphs 14 to 16 above, during the Relevant Period, there was a market in Australia for the supply of FX Instruments by Dealers to customers (Australian FX Market). 18. The Australian FX Market was a market within the meaning of s 4E of the TPA and s 4E of the CCA. 39 The key allegations are in [23] to [26] which plead: F. Relevant Arrangements or Understandings F.1 The FX Understanding 23. By no later than 1 January 2008, alternatively during the Relevant Period, the Respondents arrived at an arrangement or understanding with each other and certain other entities (Other Cartel Participants) containing a provision that each of them would: (a) co operate with the others in relation to trading in FX Instruments by: (i) sharing non public information concerning current or potential future trading (Shared Information), such information to be used to their respective benefit in trading and in order to identify occasions to coordinate trading; and (ii) co ordinating their trading, or the prices at which trades were offered or occurred (Coordinated Trading); (b) keep confidential the existence of the understanding and any conduct giving effect to it (Concealment), (the FX Understanding, and the provision being the FX Understanding Provision) 24. During the Relevant Period, each of the Respondents gave effect to the FX Understanding Provision, by: (a) from time to time, sharing non public information concerning current or potential future trading in FX Instruments with one or more of the other Respondents and Other Cartel Participants; (b) from time to time, co ordinating trading in FX Instruments and/or the prices at which trades occurred with one or more of the other Respondents and other Cartel Participants; F.2 The FX Chatroom Understandings 25. Further, or alternatively to paragraph 23, during the Relevant Period, each of the Respondents who was a participant in one of the chatrooms in the Overt Acts Spreadsheet arrived at an arrangement or understanding with each other Respondent and Other Cartel Participant who participated in that chatroom, containing a provision that each of them would: (a) co operate with the others in relation to trading in FX Instruments by: (i) sharing non public information concerning current or potential future trading (that is, Shared Information) such information to be used to their respective benefit in trading and in order to identify occasions to coordinate trading; and (ii) co ordinating their trading, or the prices at which trades were offered or occurred; (b) keep confidential the existence of the understanding and any conduct giving effect to it (each being an FX Chatroom Understanding, and each such provision being a FX Chatroom Understanding Provision). 26. During the Relevant Period, each of the Respondents gave effect to the FX Chatroom Understanding Provisions to which they were party, by: (a) from time to time in that chatroom, sharing non public information concerning current or potential future trading in FX Instruments with one or more of the other Respondents and Other Cartel Participants; (b) from time to time in that chatroom, co ordinating trading in FX Instruments and/or the prices at which trades occurred with one or more of the other Respondents and Other Cartel Participants; (c) keeping the respective FX Chatroom Understanding, and the conduct in (a) and (b) above, confidential, and engaging in the conduct described in (vi)(A) and (B) of the particulars to paragraph 25. 40 Further, [27] to [40] plead: G Relevant Contraventions by the Respondents G.1 FX Understanding: price fixing 27. At all material times prior to 24 July 2009, the FX Understanding Provision had the purpose or effect, or was 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. 28. By reason of the matters alleged in paragraph 27 above, the FX Understanding Provision is deemed by s 45A of the TPA, as applicable to conduct up to 24 July 2009, to have had the purpose or effect, or to have been likely to have the effect, of substantially lessening competition within the meaning of s 45(2) of the TPA. 29. By reason of the matters alleged in paragraphs 27 to 28 above, by making or arriving at the FX Understanding, at all material times prior to 24 July 2009 each of the Respondents contravened s 45(2)(a)(ii) of the TPA. 30. Further and in the alternative, by reason of the matters alleged in paragraphs 27 to 28 above, by giving effect to the FX Understanding Provision at all material times prior to 24 July 2009 each of the Respondents contravened s 45(2)(b)(ii) of the TPA. 31. At all material times on or after 24 July 2009, the FX Understanding Provision had the purpose or effect, or was likely to have the effect, directly or indirectly, of fixing, controlling or maintaining or providing for the fixing, controlling or maintaining, of the 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 44ZZRD of the TPA and/or s 44ZZRD of the CCA, as applicable. 32. By reason of the matters alleged in paragraph 31 above, at all material times on or after 24 July 2009, by making or arriving at the FX Understanding each of the Respondents contravened s 44ZZRJ of the TPA and/or s 44ZZRJ of the CCA, as applicable. 33. Further, by reason of the matters alleged in paragraph 31 above, at all material times on or after 24 July 2009, by giving effect to the FX Understanding Provision each of the Respondents contravened s 44ZZRK of the TPA and/or s 44ZZRK of the CCA, as applicable. G.2 FX Understanding: restricting supply 34. Further or alternatively, throughout the Relevant Period the FX Understanding Provision had the purpose, directly or indirectly, of restricting the supply or likely supply of FX Instruments, or alternatively, the supply of offers to trade in FX instruments, to persons or a class or classes of persons, namely those customers or potential customers of one or more of the Respondents or Other Cartel Participants which customers' trading position was on the opposite side of a currency pair trading position of one or more of the Respondents or Other Cartel Participants (such as where a Respondent was long USD and short AUD, the class of persons who at that time wished to sell AUD and buy USD from a Dealer). 35. By reason of the matters in paragraph 34 above, the FX Understanding Provision was an exclusionary provision within the meaning of s 4D of the TPA and CCA. 36. By reason of the matters in paragraphs 34 and 35 above, by making or arriving at the FX Understanding the Respondents breached s 45(2)(a)(i) of the TPA and the CCA. 37. By reason of the matters in paragraphs 34 and 35 above, by giving effect to the FX Understanding Provision the respondents breached s 45(2)(b)(i) of the TPA and the CCA. G.3 FX Understanding: substantially lessening competition 38. The FX Understanding Provision had the purpose, or would have or be likely to have the effect, of substantially lessening competition in the Global FX Market and the Australian FX Market. 39. By reason of the matters in paragraphs 23 and 38, throughout the Relevant Period by making or arriving at the FX Understanding each of the Respondents contravened s 45(2)(a)(ii) of the TPA or the CCA as applicable from time to time. 40. By reason of the matters in paragraphs 23, 24 and 28, throughout the Relevant Period by giving effect to the FX Understanding Provision each of the Respondents contravened s 45(2)(b)(ii) of the TPA or the CCA as applicable from time to time.

[5]

Class closure: applicable provisions and principles 41 Sections 33J, 33X and 33ZF of the FCA Act are the relevant sections concerning orders for opt out and registration prior to any mediation. 42 Section 33J(1) concerns opt out. It relevantly provides that "[t]he Court must fix a date before which a group member may opt out of a representative proceeding." 43 Section 33X deals with notices to group members. Section 33X(1) sets out the matters in respect of which notice must be given to group members. Section 33X(5) provides that "[t]he Court may, at any stage, order that notice of any matter be given to a group member or group members." The form and content of any notice to be given to group members under s 33X must be approved by the Court and the way in which the notice is to be given must be as specified by the Court: ss 33Y(2) and (3). 44 The combined effect of s 33J(1) and s 33X of the FCA Act is that the Court must, as soon as practicable, fix a date by which group members may opt out of a representative proceeding and require that notice of this be given to group members. The notice must be approved by the Court (s 33Y(2)) and the Court must, by order, specify who is to give the notice and the way in which it is to be given (s 33Y(3)), which could include requiring it to be given by means of press advertisement: s 33Y(4). 45 The principal purpose of an opt out notice is to ensure that group members are accurately informed of their right to opt out of the proceeding before the opt out date fixed by the Court. 46 In Gagarimabu v The Broken Hill Proprietary Co Ltd [2001] VSC 304, Hedigan J at [16] to [20] said, albeit in a more exotic factual context: It is timely to refer to some features of the means by which opt-out notices are to be given. Section 33X(4) provides "The Court must not order that notice be given personally to each group member, unless it is satisfied that it is reasonably practicable and not unduly expensive, to do so." Naturally, the Court is obliged to address as part of the specification of the notice the means by which it is likely to come to the attention of the group members. I will refer to it later, but both Counsel for BHP and OTML urged strongly that meetings should be held by way of explanation and the like in each of the relevant villages rather than, as the plaintiff proposes, a key 13 of the 115 or so villages. The Court should not be quick to endorse a procedure which is predicated on the assumption that the object might not be achieved because there will always be some members of a group proceeding who would not receive or understand the s.33X notice. But the language in s.33X(4) is "reasonably practicable", not "unduly expensive". This clearly empowers the Court to seek to balance the crucial objectives of the opt-out notice against undue expense and difficulties connected with conveying the relevant notice to the group members. This led Mr Beach to contend that one of the features of justice that had to be borne in mind is to seek to ensure that the prosecution of group proceedings is not obstructed by impracticable procedural requirements. He referred to the statements made by McHugh J in Carnie v Esanda Finance Corp Ltd (1995) 182 CLR 398 at 429-30 (made in respect to representative proceedings). " … The recent cases have been more liberal in allowing representative actions to proceed. In the Age of Consumerism, it is proper that this should be so. The cost of litigation often makes it economically irrational for an individual to attempt to enforce legal rights arising out of consumer contract. Consumers should not be denied the opportunity to have their legal rights determined when it can be done effectively by one person with the same community interest as other consumers. Nor should the courts be cluttered by numerous actions when one action can effectively determine the rights of many." McHugh J's judgment has been approved in Wong v Silkfield Pty Ltd (1999) 199 CLR 255, paras 13-14, and by the Full Federal Court in Femcare Limited v Bright (2000) 172 ALR 713 at 726-27. The Full Federal Court in that case, having referred to McHugh J's judgment in Carnie stated: "As McHugh J recognises in this passage, the representative procedure could be utilised in circumstances where the members of the represented class not only did not consent to the procedure but knew nothing of it. The authorities referred to by Professor Yazell and McHugh J support the proposition that the representative procedure did not require individual notification to each of the group members. Indeed, it is not clear that any form of notice to the group members was necessarily required." I also note the statements of the Full Court of the Federal Court in Femcare v Bright (above) that it is undoubtedly true that the combined effect of sub-ss.33Y, 5 and 8 is that a group member who may not be given or receive "notice … personally" of the commencement of the representative proceeding will still be bound by an adverse (or favourable) outcome. And that there is at least a possibility that some group members will become bound without ever knowing that it has been commenced or conducted on their behalf. The Court may order a notice to be given personally to each member if it is satisfied that it is reasonably practicable and not unduly expensive to do so. In cases of the putting of the details of a notice in an English language newspaper in, say, the State of Victoria or anywhere in Australia, that kind of notice is ordinarily sufficient. There looms over all of this s.33ZF which empowers me to make any order I think appropriate to ensure that justice is done in the proceeding. The objective is to find an effective and economical means of ensuring that group members are informed of the proceeding and their rights, so long as the steps taken are notification are reasonable. Perfectability is not the guiding principle. Mr Beach argued against imposing requirements that rendered the proceeding, by way of representative action, impracticable in the very case in which it is needed. The objective of the Act is to enhance access to justice by establishing a procedure that enable legitimate common grievances to be remedied, which procedures provide advantages to group members whose claims would otherwise be without practical redress. This involves the process of striking a balance between the impracticality of formulating overdetailed methods of giving notice to group members and the seeking out of an effective procedure. Moore J in the first instance in King stated (para 3): "However, while the terms of the opt-out notice must be readily comprehensible and clear, it is important, in my opinion, to ensure that the central purpose is not obscured by matters of detail." The plaintiffs here emphasised that the proposed notification process goes beyond mere publication of a newspaper advertisement and includes (a) notices broadcast by Radio Karai, widely listened to in the western province; (b) distribution of newsletters to over 100 villages and posting a copy of the newsletter on any central boards erected on commonly used places of attendance in each village; (c) conducting public meetings in regional centres of the Western Province to explain the opt-out procedure as advertised in newspaper, radio and newsletter, and providing a special opportunity at those public meetings for group members to deliver any opt-out notices directly to the plaintiff. 47 It is important that the notice be written in plain English, and also that it not contain unnecessary information which may have the potential to either confuse or intimidate the persons to whom it is addressed. The notice should clearly describe the consequences of remaining a group member or of opting out, alert group members to the fact and consequences of any costs agreement or litigation funding agreement, and be sent, published or broadcast via means best calculated to achieve effective dissemination among group members in the most cost effective way. 48 Section 33ZF(1) gives the Court power to "of its own motion, or on application by a party or a group member, make any order the Court thinks appropriate or necessary to ensure that justice is done in the proceeding." 49 Now Part IVA of the Act does not contain an express power permitting the Court to make an order to close a class prior to settlement. 50 But the Federal Court has power to make the orders sought in the application, and it is a matter of discretion whether the Court considers it appropriate to do so in the circumstances of the particular case: Parkin v Boral Limited (2022) 291 FCR 116 at [97] to [152] per Murphy and Lee JJ; Wetdal Pty Ltd as Trustee for the BlueCo Two Superannuation Fund v Estia Health Limited [2021] FCA 475 at [67] to [96]. 51 In Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd (2017) 252 FCR 1 at [74] and [75], Jagot, Yates and Murphy JJ endorsed the making of class closure orders in Part IVA proceedings where they will facilitate the desirable end of settlement. In that case, the parties agreed that some form of class closure should be made. 52 In Parkin v Boral, the Full Court determined that, pursuant to s 33X(5), the Federal Court had the power to approve a notice to group members that, upon any settlement of the proceeding, the applicant would seek an order which, if made, would have the effect of providing that any group member who by a registration date had not registered or had not opted out of the proceeding, would remain a group member for all purposes of the proceeding but would not, without leave of the Court, be permitted to seek any benefit pursuant to any settlement occurring prior to final judgment. 53 Where class closure orders have been made, Courts have recognised that it is a question of balance and judicial intuition. The relevant considerations in deciding whether it is appropriate to order class closure include the attitude of the parties and the particular facts and circumstances of the case. 54 Opposition by a party to soft class closure is a factor to be taken into account by the Court. 55 Further, the Court should usually not exercise the discretion to make a class closure order based merely on a respondent's assertion that it is unwilling to discuss settlement unless such an order is made. Such an assertion may be tainted by natural self-interest in not only rendering financial exposure more certain, but also in minimising it by forcing group members to make a choice about participation before any settlement offers have been made. 56 The respondents suggest that class closure orders should be made to ensure that future legal costs are proportionate to the quantum of the claim. However, notions of "proportionality" are not recognised by the authorities as a basis for exercising the power to make class closure orders. In any event, as experience in foreign exchange litigation in other jurisdictions demonstrates, the "proportionality" argument does not assist the respondents because the potential quantum of the claims in this proceeding is on any view significant. It strains credibility to suggest that the respondents will devote less vigour and resources to defending this proceeding than they have to date (or would otherwise) based upon an assessment of potential damages exposure of lesser magnitude than they have hitherto anticipated. 57 It is relevant to the exercise of that discretion whether registration is sought to facilitate a mediation, and the difficulties that would be faced by any or all of the parties in trying to conduct a mediation without the orders sought in the application being made: Parkin v Boral; Wetdal. 58 Other considerations include the point at which the case has reached, the attitude of the parties, and the complexity and likely duration of the case. 59 More generally, the parties are responsible for ascertaining the most efficient, including cost efficient, method of resolving the proceeding. 60 Alternative dispute resolution should be used where appropriate at the earliest and most effective stage of the proceeding, and the Court expects the parties to place themselves in the most informed position possible for any ADR process, including agreeing on categories of information or limited documentation necessary to exchange in advance of mediation so that the process is truly effective and participating in a meaningful way in negotiations with a view to reaching a mutually acceptable compromise to resolve the proceedings. 61 There are often obstacles to the settlement of class actions, including that the number of class members interested in participating in the class action and the quantum of the claims made by them is not known and cannot readily be assessed by the respondent. 62 At an early stage, the parties should take steps to establish methods by which information is to be gathered and exchanged which, without compromising the utility of the class action procedure, would assist the parties to have settlement discussions which are as informed as possible. The Court will make directions, including directions in relation to information sharing in a mediation, that it considers appropriate. 63 It was determined by the Full Court in Parkin v Boral that the Court has power under s 33X(5) of the FCA Act to approve a notice in the form sought by the respondents in the application. 64 Murphy and Lee JJ referred to the evidence of the parties in that case to the effect that the identity of all eligible group members was not known or knowable to the parties, registration would advance the prospects of settlement by providing the parties with a better understanding of the total quantum of group members' claims, and the assessment of aggregate claim value allowed by such an order would enable the applicant's lawyers to have more confidence that they were able to recommend a settlement offer in circumstances where the proposed settlement must be fair and reasonable and in the interests of group members in order for it to be recommended by the applicant's lawyers and in order for it to be approved by the Court. 65 The Court accepted the reality that it was important to both applicants and respondents to be apprised of sufficient information, including class and claim size and potential recovery, or the nature and quantum of the claims advanced, in order to discharge their duties in participating in settlement discussions. 66 The Court determined that the Court has power to make the proposed order under s 33X(5) and held that whether or not to do so was an issue of discretion, not power. 67 Following the decision of the Full Court in Parkin v Boral, Lee J as docket judge in Parkin v Boral Limited (Opt Out and Registration Notices) [2023] FCA 1300 approved a notice informing group members that an order would be sought that if group members do not register by 12 January 2024, they will remain group members but will not be entitled to participate in any settlement that may be agreed by the end of July 2024. This was a more limited notice than approved by the Full Court as the group members who did not register would not be at risk of being unable to participate in any settlement that was reached after July 2024. 68 As to registration, there is no requirement in Part IVA of the FCA Act that group members must register their participation in a representative proceeding. Nevertheless, the Full Court confirmed in Parkin v Boral that the Court has power under s 33X(5) to approve a notice to group members giving them notice to the effect that upon any settlement an order will be sought, which if made, has the effect that any group member who has not, by the registration date, registered or opted out will remain a group member but shall not, without the leave of the Court, be permitted to seek any benefit pursuant to the settlement. This is the form of notice sought by prayers 1(b) and 2(b) of the interlocutory application here. Although this form of order is sometimes referred to as "soft class closure", it does not in fact "transmogrify" an open class action into a closed class action, but rather proposes a demarcation between registered and unregistered group members that only has effect if a settlement is later reached by the parties and approved by the Court. 69 The issue for the Court when asked to make registration orders of this kind is thus not whether it has the power to make them, but rather whether it is an appropriate exercise of its power under s 33X. The relevant considerations in this context can include whether it is in the interests of group members as a whole to require registration before any prospective settlement is on the table, the point which the proceeding has reached, the attitude of the parties, the complexity and likely duration of the case, with protracted litigation and greater complexity increasing the interests of group members in avoiding litigation risk through achieving a settlement, whether group members have adequate notice of the change and reasonable time to decide whether to register, and whether an estimate of the size and number of claims can be made. 70 Whilst the significance of these considerations will vary with the circumstances of the case, a paramount factor is the extent to which a registration process is likely to improve the prospects of achieving a reasonable settlement. 71 An indication of how the individual claims of group members are proposed by the applicant to be dealt with in this proceeding is contained in particular (iii) to [68] of the amended statement of claim, which states: Particulars in relation to Group Members' losses will be obtained and provided following opt out, the determination of the Applicant's claim and identified common issues at an initial trial and if, and when, it is necessary for a determination to be made of the individual claims of those Group Members. 72 This is necessary because, as [67] of the amended statement of claim pleads, it is only FX instruments that the alleged conduct caused to be at higher prices (for group members who were buyers under the instrument) or lower prices (for group members who were sellers under the instrument) for which damages are claimed. Group members who were sellers under instruments at higher prices and buyers under instruments at lower prices did not suffer loss, but rather benefited, which benefit must be accounted for in any claim for damages they bring in relation to any other FX Instrument on which they did suffer loss. So, this is a case where loss is highly individualised, based on the particular trading history of individual group members, the currency pairs traded and whether they were buying or selling at the relevant time. 73 This proposed path forward provides an insight into the cost and time that will be involved to resolve the individual claims of group members if a settlement cannot be reached, and which will necessarily involve identifying, by a registration process, the group members who wish to participate in the proceeding and then obtain from participating group members particulars of their loss and supporting evidence. So, in my view it is more efficient and effective to bring forward that inevitable process of registration with a view to exploring whether an early settlement can be reached now with the benefit of the information obtained through that process.

[6]

Reasons supporting registration at this stage of the proceedings 74 The expert evidence that will be required to be prepared in the proceedings will be extensive and costly, and is estimated to cost millions of dollars. 75 Registration is sought to facilitate a mediation by providing the parties with information they do not have, and cannot themselves reliably ascertain, being the number of potential group members (being those persons who meet the group member definition), the number of potential group members who wish to participate in any settlement, the identity of those potential group members and information to identify if they satisfy the group definition, the volume of qualifying trading by the potential group members, and whether those potential group members have already received compensation (or had their claims resolved or released). 76 Without the information that will be provided through the proposed registration process, the respondents will be constrained in assessing terms for resolution, which will present a significant obstacle in reaching a resolution, and the parties are likely to adopt materially different views about the number of potential group members, the value of transactions that are the subject of the proceedings, the value of the claims of potential group members, and the likely participation rate of group members, which disparity means that it will be unlikely that the proceedings will be capable of resolution. 77 In the circumstances of the proceedings, there are particular obstacles to achieving settlement without registration because the potential size of the group is not known and is unable to be ascertained because a person can be a group member even if they had no trading relationship with any of the respondents, and the definition of group member involves knowing the physical location of a dealer or customer when the trading occurred. 78 The respondents have been party to other proceedings overseas which were settled in 2015 and 2017, being the US Forex proceeding and the Mancinelli proceeding, which settled at an early stage prior to any document production and against a backdrop of pending US regulatory action. Those settlements were lump sums that were not structured by reference to the number of group members or their claim value. The Allianz proceedings were not class actions but were claims brought by parties that opted out of the US Forex proceeding, such that the plaintiffs were known and the respondents' trade data was able to be used to identify their trades. 79 There is potential overlap between group members in the proceedings and those in the US Forex proceeding and the Mancinelli proceeding because of the overlapping group member definitions. 80 In addition to facilitating settlement negotiations, registration will provide the parties with a foundation to ensure that the ongoing conduct of the proceeding is proportionate to the potential size of the claim. 81 Given that the applicant agrees that now is the appropriate time to undertake mediation, appropriate steps should be taken to ensure that the mediation is as useful and effective as practicable. 82 The applicant points to publicly available information as a proxy for making an informed estimate of matters not known to the parties. The applicant refers to two sources of publicly available information, being reports by the Australian Foreign Exchange Committee (AFEC) and the Bank of International Settlements (BIS). 83 But the AFEC reports are limited to data from 25 financial institutions. They do not include transactions executed by traders or sales desks located outside Australia, which are covered by the group definition. And they do not cover all affected currency pairs as pleaded. 84 The BIS reports contain global foreign exchange market information and are based on data from survey participants. They have similar deficiencies. 85 I agree with Mr James Arnott SC, counsel for Citibank, that limiting them to the public information suggested will mean that the parties have an uncertain baseline of information by which to then apply analysis, which analysis will itself be the subject of differing methodologies and assumptions. It would also mean that the respondents will have no individualized trading information by which to inform an estimate of the potential net loss suffered by group members. The likely result is that an absence of registration will be a significant impediment to any potential resolution. 86 Further, there is no suggestion here that group members will not understand the notice or registration process. Rather, the applicant's reasons for opposition are that some group members will not want to register either because they wish to remain anonymous or because the effort to do so could not be guaranteed to yield compensation. 87 But such reasons do not align with the objectives that class action proceedings are designed to achieve, which are to enhance access to justice for individuals who might not otherwise be able to pursue their claims, reduce the costs of court proceedings where multiple individual claims exists, promote efficiency in the use of Court resources, increase consistency in the determination of common issues, and make the substantive law more enforceable. 88 The applicant has not even disclosed to the respondents information as to the number or identity of those potential group members who have registered with the solicitors for the applicant, nor has the applicant offered to provide any such information in advance of the mediation. I agree with the respondents that the applicant's resistance to obtaining and providing relevant information is inimical to the parties undertaking settlement negotiations on an informed basis. 89 A mediation in a case involving the number of parties present in this case will be a costly exercise, and, whether registration occurs or not, will involve significant time to enable the parties to properly prepare. It should not be made less effective by preventing access to information required to enable reliable assessments to be made of the potential size of the claim at issue in the proceedings. Efforts should be made now, prior to the preparation of evidence, to avoid the incurrence of the vast amount of legal costs that will be incurred if the proceedings are unable to be resolved. 90 Now I accept that since class closure orders were endorsed by the Full Court in Treasury Wine, they have generally only been made on the joint application of the applicant and respondent, and the applicant's consent to them has been an important factor in the Court satisfying itself that the order ought be made. Class closure orders are typically made with the support of all parties to the proceeding. 91 But in my view in the circumstances of the present case it is appropriate that soft class closure orders are made notwithstanding the opposition of the applicant. 92 On any view it is appropriate that both opt out procedures and mediation should occur now. 93 The proceeding has reached a sufficiently advanced stage. The proceeding has been on foot for over four and a half years. The pleadings have closed, with the applicant having filed an amended statement of claim in November 2021, and defences and replies having been filed in March and May 2022. The issues in dispute on the pleadings are understood, and there is no reason to think that the group member definition will change. Extensive discovery has been given by the parties, and the enormous quantities of documents and data produced by the respondents indicates that this process is essentially complete. Thus, there is no practical reason why opt out cannot be clearly and simply explained to group members at this juncture, with a date fixed by which opt out must occur. 94 Likewise, it is appropriate that the parties attend a mediation at this stage of the proceeding, which requires a registration process to occur beforehand. 95 First, with the pleadings closed and discovery essentially complete, all parties are well placed to assess the merits of the applicant's claim on liability with a view to conducting a sensible mediation. This is more than enough material for the applicant and respondents to assess the applicant's prospects of proving its claims. 96 Second, it can be inferred from the steps taken to date in the proceeding, including the volume of discovery given, that not only have substantial legal costs been incurred, but that the cost of preparing expert evidence and conducting a trial would be very large. The data discovered by the respondents will need to be the subject of detailed expert synthesis and analysis for the purpose of assessing both the effects of the alleged arrangements or understandings and quantum. This likely will be very complex and expensive. Indeed, the affidavit of Ms Ruth Overington on behalf of UBS refers to a declaration filed by counsel in the US Forex proceeding in the United States which stated that, in that case, "[m]ost of the litigation expenses incurred, $17,222,662.19, were for expert work"; this expenditure was for the plaintiffs' expert evidence. Ms Overington estimates that the cost of obtaining similar types of expert evidence in this proceeding for the respondents would be not less than AUD10 million. By way of extrapolation, assuming the applicant here incurs expert costs of an amount similar to the plaintiffs in the US Forex proceeding (of over USD17 million) and the respondents incur at least AUD10 million in respect of their expert evidence, the overall cost of expert evidence in the proceeding could exceed AUD25 million. At this point in the proceeding, before any of that work has been commissioned, there is an opportunity for the parties to mediate with a view to potentially agreeing a settlement that could avoid incurring these costs. Moreover, it is appropriate to take all reasonable steps to give that mediation the best prospect of resulting in a settlement, including by ordering a registration process to occur in advance of the mediation. 97 Even the applicant sees merit in mediation occurring now. Given the time that the proceeding has been on foot, the cost that will be expended to prepare expert evidence and conduct a trial and the time that will take, and the significant time that has elapsed since the alleged losses of the group members and now, it could not sensibly be suggested that mediation now is not appropriate. 98 Let me now elaborate further on some aspects.

[8]

Australian FX market volume data 100 The applicant says that the publicly available data published by the AFEC and the BIS as to the size of the Australian FX market during the relevant period enables the parties to form a top-down estimate of class size for the purpose of estimating the global loss for all class members in the proceeding. 101 The AFEC reports compile data from key financial institutions that are active in the Australian foreign exchange market, which is drawn from the Reserve Bank of Australia's quarterly turnover survey, and provide summaries of foreign exchange turnover in the Australian market by, among other things, instrument, currency and counterparty. Similarly, the BIS triennial reports compile data from various key global financial institutions, in the global foreign exchange market, which is drawn from turnover surveys of various central banks including the Reserve Bank of Australia, and provide summaries of foreign exchange turnover in the global market by, among other things, instruments, currency, counterparty and geography. Ms Nishimura's evidence is that it is possible to estimate the total turnover for FX instruments reported to have been transacted in Australia during the relevant period based on the data contained in the AFEC and BIS reports. Ms Nishimura further explains that the applicant is in a position to brief an appropriately qualified expert with expertise in the FX market to estimate the total turnover associated with the claims made in this proceeding by reference to the BIS and AFEC data. This would enable the parties to arrive at an estimate of group-wide losses in the proceeding. 102 The applicant says that a similar approach of using publicly available data to estimate the overall size of group member damages claims was used in the context of settlement in related foreign proceedings; see the expert report of Professor Martin Evans filed in the US Forex proceeding and the expert report of Professor Ilias Tsiakas filed in the Mancinelli proceedings. 103 The applicant says that the respondents' criticisms of the publicly available data are directed to minor or peripheral issues and do not invalidate the use of the data as an effective tool to arrive at a reasonable estimate of the overall size of group claims. 104 As to the data not including turnover from FX instruments entered into between customers in Australia and dealers located overseas, the applicant says that all that means is that any estimate of group-wide claims will be on the more conservative side. It is said that the same point can be made about the criticism that the data does not include turnover from FX instruments entered into between customers in Australia and all dealers located in Australia, or more generally that the data does not precisely align with the "Arranged in Australia" aspect of the group definition in the proceeding. 105 As to the data not identifying turnover for each of the FX instruments and currency pairs the subject of this proceeding, it is said that Ms Nishimura's evidence shows that the 21 main currency pairs included in the AFEC and BIS reports account for most of the transactions in FX instruments. Again, it is said that any currency pair lacuna would be an imperfection that would not prejudice the respondents. 106 Further, as to the suggestion that the data appears to include turnover from trades that fall below the pleaded minimum transaction volume for inclusion in the class, the applicant says that this can be addressed by an expert. Further, it is said that to the extent necessary, appropriate discounts can be applied for the purposes of meaningful engagement at mediation. 107 Further, as to any potential overlap with group members who may have already been compensated in other overseas proceedings, the applicant says that a variety of methods could be deployed to assess or quantify any such overlap for the purposes of mediation. These methods include requesting information and/or data from former FX traders, salespersons, experts and industry participants retained by the parties as to the likely volume of any overlap. Further, it is said that the parties could also jointly approach the foreign courts and/or settlement administrators overseeing the foreign settlements to obtain aggregated information as to the degree of any overlap as evident in their distribution records. 108 But I would say now that there is an air of unreality to all of this. Moreover, and particularly as the applicant is also pressing for a mediation, why should any of this be "imposed" on the respondents. The applicant's perception of what is reasonable for the respondents to do or accept in the context of a mediation should hardly drive the agenda. 109 The applicant also says that the use of the publicly available data as a reasonable basis for estimating claim sizes was an approach utilised in the related foreign proceedings, in circumstances where the settlements took place prior to any class closure or registration process. The defendants in those proceedings included all respondents in this proceeding and their related entities. But as the respondents rightly contend, there were significant differences. 110 The respondents contend that the overseas proceedings reached settlements based on lump sums that were not structured by reference to the number of group members or their claim value, but the applicant says that this misses the critical point illustrated by the approach taken in the overseas proceedings, namely, that the respondents are demonstrably capable of estimating potential settlement parameters, including by utilising publicly available data, without the need for registration by group members. But I agree with the respondents that there is an air of unreality to this submission.

[11]

Conclusion on estimating quantum for mediation 117 In my view, a registration process should be ordered now. 118 First, a mediation is significantly more likely to succeed when the parties can reasonably estimate the number of group members who will participate in any settlement, and the likely quantum of their claims. Clearly, the identity of a significant proportion of group members are not known or ascertainable by the parties. Absent that information, it is difficult for the parties to agree on a figure, let alone be confident that any in-principle settlement will result in finality, given the risk of under-estimating the number of group members who ultimately would seek to benefit from the settlement. 119 Further, whether registration orders are made before a mediation in a particular case is a fact-specific inquiry to address the question whether the registration orders are likely to materially increase the prospect of a successful resolution of the proceeding such as to justify the cost of registration and the burden on group members of registering. That question is not answered by any preconception of particular types of class actions where registration is or is not appropriate. But it must be said that registration orders are likely to be of even greater utility when the parties cannot work out who the group members are and what the quantum of their claims will be. 120 Second, I agree with the respondents that there is a clear inability to estimate the number of group members who will participate in any settlement and the quantum of their claims without a registration process. Unlike most class actions, where the claim is based on a trading or other relationship between group members and the respondents that the respondents could ascertain from their records, such as supplier/customer and company/shareholder, the applicant's claim here alleges market wide harm and includes as group members persons who had no trading relationship with the respondents. Clearly, it is not possible for the respondents to identify all group members from their own trading records. 121 Further, even if it were possible to reliably estimate the total number of group members, the parties still would not be able to reasonably estimate or agree on the number who will participate in any settlement and the quantum of their claims. Absent registration, the fact that the alleged conduct occurred over 10 to 15 years ago and includes persons who had no trading relationship with the respondents means there is significantly increased uncertainty as to whether potential group members would wish to participate. 122 Further, as the respondents point out, potential loss in this case is likely to be highly individualised, because the applicant's theory of harm likely would involve FX instruments where some group members suffered a loss and others realised a gain, so group members who traded more than once during the relevant period could have any losses offset by gains. This reinforces the utility of a registration process. It will assist in identifying how many group members with these characteristics reside in the body of group members. 123 I also agree with the respondents that this problem is compounded by the fact that the group definition overlaps with claimant definitions in settled overseas proceedings, being the US Forex proceeding and the Mancinelli proceeding. Group members who have already received compensation from an overseas settlement would not be able to participate or participate to the same extent in any settlement reached here. But this is not something the parties can estimate absent information on the extent of the overlap. 124 Now the applicant contends that the market size can be estimated based on publicly available information and participation rates and recovery rates inferred from overseas proceedings through a top down approach. But I agree with the respondents that approaching a mediation with only a top down approach is suboptimal. Even if that approach provided a "point of departure" for the start of a mediation, it does not provide the requisite level of detail to understand the claim size of the group. And given that registration will have to occur at some point, as the applicant had to concede, it makes sense for it to occur now and in advance of mediation so as to give the highest prospects of success to any settlement discussions. 125 Third, the suggestion that the US Forex proceeding and the Mancinelli proceeding settlements could provide a precedent that obviates the need to obtain this information is incorrect. The monetary components of those settlements were not based on data concerning actual losses by class members. So, they do not bear any numerical relationship with or provide any practical assistance in estimating the potential quantum at issue here. Those settlements are also context specific. Moreover, as to the participation rates in those settlements, the applicant provides no coherent explanation for why similar participation rates would be expected here. 126 In relation to participation rates, there were significant variations in the scope of and detail of the instruments covered in the US Forex proceeding and Mancinelli proceeding, the relevant periods and settlement sums. For example, in the US Forex proceeding there was a "direct transaction" requirement that is not present in these proceedings. In the Mancinelli proceedings, the group definition extended to persons who "entered into an instrument traded in the foreign exchange market", rendering generalised market data of greater potential relevance. In addition, in two of the foreign proceedings participation rates were calculated by dividing class sizes by submitted claims. In these proceedings, the applicant is simply unable to identify with any degree of reliability the size of the relevant class. Factors such as these make it difficult to use participation rates as a proxy or to estimate and advise on numbers of group members and quantum. Having agreed that there are differences between these proceedings and the foreign proceedings, the applicant's response that these factors can be "controlled for" in an expert process is unpersuasive in circumstances where the applicant provides no detail as to the assumptions or processes that could be used. 127 In my view, a registration process would enable the parties to know how many group members will participate and to estimate the maximum size of their claims after accounting for overseas settlements. It is the only way that information can be obtained. And that information is likely to significantly increase the prospects of achieving a reasonable settlement. 128 Let me make some other points. 129 First, one of the elements of the group definition requires that a person suffer loss or damage by reason of the conduct of one or more of the respondents in the ASOC. In circumstances where the applicant's pleaded case involves allegations that loss was suffered as a result of a group member entering into transactions the subject of FX instruments at elevated or diminished prices and/or losing an opportunity to commence a proceeding at an earlier stage, an individualised assessment of loss and damage will ultimately be required to determine whether a particular person is a group member. 130 Second, the pleading gives rise to inherent practical difficulties in identifying group members and quantifying claims. As a result of the broad definitions of "Dealer" and "Arranged in Australia", there is some complexity in estimating potential group member numbers. In addition to the five respondents, 29 other banks (the other cartel participants) and an indeterminate number of third-party dealers such as FX brokers are likely to fall within the definition of "Dealer". Dealers may also be customers of other dealers in particular circumstances. The ability to identify group members other than those with whom it had a trading relationship is limited. 131 Third, even if all group members and qualifying trades could be identified by each of the five respondents despite the inherent and intractable difficulties above, the pleading alleges that the respondents are party to less than half of spot and outright forwards trades on both an Australian and global basis. As such, a substantial number of group members are likely to have traded with a substantial number of entities aside from the respondents, including the 29 alleged other cartel participants. 132 Fourth, it will also be necessary to have regard to individual circumstances in determining whether the minimum transaction volume (AUD500,000) is met. In circumstances where the definition permits the volume threshold to be met through transactions involving other dealers, even if qualifying trades could be identified, the respondents could not assess whether an entity or person met the threshold to the extent that the entity or person did so through third party trades. 133 Fifth, in relation to market data, the applicant contends that publicly available market data published by the AFEC and BIS may provide a basis for settlement discussions. However, that data is insufficient for the purpose of identifying actual group member loss because it is provided on an infrequent and aggregated basis with limited information regarding instruments, currencies or participants (in the AFEC data) or consists of generalised reporting on the size and structure of markets based on central bank survey data on a basis that does not accord with the "Arranged in Australia" definition (in the case of the BIS data). Having regard both to the generality and nature of the data, it cannot be reliably related to key integers of the pleaded claim and group definition. In those circumstances, the suggestion that the applicant may at some point in the future brief an expert to estimate the total turnover associated with the claims made, make unidentified appropriate adjustments on the basis of equally unidentified appropriate assumptions and inferences does not address the respondents' concerns about the obvious deficiencies in this generalised data. 134 Moreover, the AFEC and BIS reports do not provide a reasonable basis for estimating the total turnover associated with claims the subject of this proceeding, for at least the following reasons. They do not include turnover from FX instruments entered into between customers in Australia and dealers located overseas. Further, they may not include turnover from FX instruments entered into between customers in Australia and all dealers located in Australia. Further, they do not identify turnover for each of the FX instruments and currency pairs the subject of this proceeding. Further, they appear to include turnover from trades that fall below the minimum transaction volume. Further, they may include turnover in respect of which customers have already been compensated in overseas proceedings. Further, the AFEC data includes transactions that do not meet the definition of "Arranged in Australia". Further, the BIS data may omit relevant transactions that were "Arranged in Australia". 135 The applicant seductively says that these issues can be overcome by "assumptions and inferences", but has not identified information that would rationally support any such assumptions and inferences.

[12]

Will the class closure process prejudice group members' interests? 136 Ms Nishimura's evidence describes the deterrent effect that the proposed class closure orders will have on group members registering their interest in participating in this proceeding prior to any settlement offer. 137 Based on her experience, Ms Nishimura opines that group members in this proceeding, including institutional investors, are more likely to register if there is an in-principle settlement. Group members with pre-existing and continuing commercial relationships with the respondents would, in that scenario, be less concerned about being seen as participating in active litigation against the respondents; and the cost / benefit analysis of taking a step to participate in settlement would be much clearer once the quantum of proposed settlement is known. Further, the reticence of some group members to register before settlement is exacerbated here by the respondents' proposal that registration involve the identification of individual group members, and the resulting loss of anonymity hitherto enjoyed by group members in the proceeding. 138 Further, the evidence of Mr Michael Lange, an experienced class actions lawyer now employed by leading claims aggregator firm FRT, is to the same effect. Mr Lange gives evidence, based on his experience and interactions with claimants in this case and other class action proceedings in Australia, that the registration process, including the prospect of individual group member identification, will deter otherwise interested and willing group members from registering their interest to participate in any potential settlement of a class action proceeding. This is due to group members' existing commercial relationships with the respondents and the reputational risk that may occur if they were known to take adversarial positions to the respondent banks in active litigation. 139 Now although Mr Lange's evidence comprises generalised statements, it is said that those statements represent opinions based on his substantial experience. 140 The applicant says that it follows from the evidence of Ms Nishimura and Mr Lange that group members' interests do stand to be prejudiced by the proposed class closure orders. It is said that prejudice to group members arises in several ways. 141 First, it is said that there is the potential exclusion from any eventual settlement of a proportion of group members, including institutions with potentially large claims. 142 Second, it is said that there is the prospect that any settlement discussions will not be productive in circumstances where the legal representatives for the applicant apprehend that the registration process has, due to the "chilling effect" predicted by Mr Lange's evidence, yielded an unrealistically small claim pool. 143 Third, it is said that even if an in-principle settlement is reached, there is the risk that there will be a flurry of applicants for late registration following any settlement, which may result in compensation available to those who registered through the class closure process being diluted. 144 Fourth, it is said that the class closure orders proposed will likely affect a significant number of qualifying group members who are not directly notified. 145 Fifth, it is said that to the extent that the respondents suggest that there is no real difference between registration now and registration following settlement, there is likely to be greater publicity and greater interest in registration following settlement. 146 Now I have taken into account the applicant's evidence and concerns. But they are overstated to a large extent, and in any event do not carry the day. 147 First, the prospect in this case of distributing monies to group members from any approved settlement without a registration process is remote. The same features of the group definition which make it impossible for the respondents to ascertain the identity of all group members, including their own customers, would also make it impossible to identify group members to whom settlement monies should be distributed. Thus, the real effect of the proposed orders with respect to registration (apart from improving the prospects of a successful mediation) is to bring forward the timing of a registration process that inevitably would need to take place in the event of a settlement. 148 Given the registration process would not need to be repeated once it has been conducted (because the contact and claim details of participating group members will have been received), there is no obvious prejudice to group members in simply bringing forward the timing of what is a process that inevitably would have to occur in any event. In this respect, the applicant contends that the respondents' approach will require two notification processes, when only one would be required if an opt out and registration notice were distributed only at the point when a settlement is reached. However, this assumes that a settlement is likely to be achieved without registration in the first place, and that the opt out process should be delayed unless and until a settlement is reached. 149 Second, the applicant contends that group members will be discouraged from registering now. This appears to be based on a theory advanced by Mr Lange at FRT, which is a firm that helps institutional investors identify eligibility, file claims and collect funds in class actions. The existence of a firm such as FRT reveals the sophisticated assistance which has developed to help group members identify and participate in class actions, including obtaining the relevant data. Accordingly, Mr Lange does not appear to suggest that group members would not register in this proceeding because they would be unaware of the process. Instead, he suggests that some may not register because of "the risks of registration". It appears that these risks are the potential impairment of current or future relationships with the respondents or "criticism in the press and by those in the business community hostile to class actions". 150 But the suggestion that an institutional investor who registers as a group member would have its relationship with the respondents impaired is an unsubstantiated contention. There is no proper basis to suggest that registration in this proceeding would cause the client service teams of the respondents to treat any registrant any differently than if they had not registered. Among other reasons, each of the respondents operates in competitive markets where they have a number of competitors who are not respondents. Further, the suggestion that a registrant would be the subject of media or other criticism is not supported by a single example. 151 Moreover, to the extent that any group member represented by FRT perceives such risks, it is plain that FRT's clients are highly sophisticated entities. If, for example, a sovereign wealth fund represented by FRT decided not to register in this proceeding, then it can be safely assumed that it did so for its own sound commercial reasons. The fact that such an institutional investor may make that calculation in its own interest does not mean that the registration process is somehow unfair for the respondents and for group members who do choose to register, particularly given the benefits in terms of the possibility of an early resolution that comes from the facilitation of an effective mediation at this point in the proceeding. 152 Further, to the extent that group members are discouraged from registering by reason of a risk that the respondents or the media will be hostile to them, then that is a risk that remains present at the time of the registration process that would inevitably have to occur after any settlement sum was agreed. 153 I have to say that I found this so-called chilling effect argument underwhelming. 154 First, I am concerned with what is in the interests of all group members rather than just the interests of the few. And in my view the interests of all group members justify the orders sought in terms of opt-out and registration now. 155 Second, if some group members are so concerned about registering now, then they can opt out of the proceeding. 156 Third, the price of registering at this stage is a reasonable price to pay in order to obtain the potential fruits of any settlement. But in any event, this is not necessarily a "once and for all" occasion. 157 Further, in terms of the quantification of this risk and the impact on registration, the high watermark of Mr Lange's evidence appears to be where he states that, even with those risks, "some" of his clients would register while "others considered it likely" that "at least some … boards would choose not to register given the risks". He makes no effort to quantify the number of clients who will register and the number who will not. He says that some would be "discouraged" from registering, but does not say that they will not do so. 158 But why, as Ms Wendy Harris KC for UBS put it, should the interests of the few trump the interests of the many? 159 Further, the orders proposed by the respondents in relation to mediation and distribution of a notice to group members regarding opt out and registration create no substantive prejudice to any group member. If settlement is not achieved at the mediation, the group members' rights are not affected. It is only later, upon any settlement that an order is to be sought which, if made, would have the effect that group members who have not registered by the registration date will not, without leave of the Court, be entitled to participate in that settlement. 160 Conversely, a settlement, if it can be achieved, will have the effect of avoiding further delay in the resolution of the proceeding, a lengthy, and costly trial, and costly expert evidence, in furtherance of the overarching obligation for a just resolution of the claim as quickly, inexpensively, and efficiently as possible. 161 Further, to the extent it is said that the announcement of a settlement may cause additional group members to register having regard to Ms Nishimura's experience in the Woolworths and Crown class actions, those cases were different from the present one. Unlike those cases, the present proceedings follow extensive litigation in various jurisdictions in which settlements have already been reached. By definition, group members are likely to be relatively sophisticated given the minimum transaction volume of AUD500,000. Indeed, Mr Lange's evidence tends to confirm the relative sophistication of group members. 162 In circumstances where the present proceeding has been on foot for a number of years, involves group members with relatively significant transaction volumes and concerns conduct that has been the subject of a variety of proceedings in other jurisdictions, it is by no means clear that a settlement process or judgment would result in a very material increase in participation relative to orders of the kind sought by the respondents in this application. 163 Finally, the relevant order sought is for a notice foreshadowing an intention to seek orders upon any settlement to the effect that group members who have not registered or opted out will remain group members but will not be permitted to seek any benefit pursuant to a settlement without leave. 164 I will retain control over class closure and the orders also envisage that group members may seek leave to participate in any settlement even after class closure orders are made. If group members emerge later, with some good reason, I retain an ability to deal with their claims.

[14]

Will there be sufficient notification to group members? 170 In my view group members are likely to be sufficiently notified of their ability to opt out or register their interest in the proceeding and the implications of this. 171 Prayers 4 to 6 envisage that each respondent will compile a list of persons with whom its records disclose that it entered into an FX instrument on an affected currency pair during the relevant period where the person was domiciled or incorporated in Australia or where the dealer was in Australia, and that all persons on those customers lists will receive the customer notice. This is a reasonably practicable method of ensuring that group members who traded with the respondents are notified. 172 Prayers 7 to 8 envisage that the applicant's solicitors will provide the general notice to group members who have already registered with the applicant's solicitors and publish it on their website. This ensures that group members who have already expressed interest in participating in the proceeding will be sufficiently notified of their ability to opt out or register. 173 In assessing the effectiveness of these steps, it is also relevant to take account of the applicant's evidence that there is already a sophisticated entity in the form of FRT actively promoting this proceeding to its clients. So, I am satisfied that there is active promotion of this proceeding underway by those with a financial incentive in attracting registrants. 174 Prayer 9 envisages that the press notice will be widely published in newspapers around Australia. This is likely to be the only reasonably practicable method of bringing the notice to the attention of potential group members who did not trade with the respondents and who have not already registered with the applicant's solicitors. The applicant also contends that there should be notice given in other industry specific and online publications. I agree and will hear further from the parties as to this. 175 Further, although the features of this case including the group definition create practical difficulties for notification, those difficulties will not be ameliorated, and indeed may be expected to worsen, with the passage of time. I agree with the respondents that the sooner an attempt is made to notify group members and invite those who wish to participate in the proceeding to come forward, the better.

[16]

Is there any unnecessary cost or delay? 181 Ms Nishimura deposes that the costs of distributing opt out and class closure notices can be significant, including the costs associated with project set-up, third party costs, distribution of notices via email and post, and professional fees incurred by the applicant's representatives in engaging with group member enquiries. Thus, the class closure orders, if made, will result in significant costs to the group as a whole. 182 Now I agree that the costs are significant, but they will have to be borne at some time. Moreover, there is more upside than downside in engaging in the process foreshadowed now. And the potential benefits flowing from what is proposed dwarf the expenditure that may be incurred. 183 Now the Court has power to order that the costs of giving a notice to group members be paid by any or all of the parties; s 33Y(3)(d). Although the Court's discretion in this regard is unfettered, the general rule is that the costs incurred in giving a notice should be borne by those instituting and prosecuting the litigation. 184 The proposal here is that the applicant initially bear the costs of notifying persons on the customer lists provided by the respondents as well as persons who have already registered with the applicant's solicitors, and that each respondent initially bear the costs of notifying persons whose contact details they are precluded from disclosing. This is on the basis that all such costs will subsequently fall to be dealt with as part of the costs of the proceeding. 185 Now as I have said, there is no doubt that registration will result in costs being incurred. But costs of project set up and identifying group members and their contact details will have to be incurred at some point in any event in order for opt out to occur and also for a registration process if a settlement is reached, and so can never be avoided completely. As the respondents have contended, the issue is really one of balance, and whether the costs to be incurred by registration orders now are appropriate given the prospect of avoiding the significant costs to be incurred to prepare evidence and conduct a trial of the applicant's claim and the common questions. In my view, the balance favours incurring those costs now in order to maximise the chances of effective mediation sooner rather than later. 186 As for the applicant's delay argument, frankly it was underwhelming as I explained to the applicant's senior counsel during the course of argument.

J Wisbey & Associates Pty Ltd v UBS AG

At a glance

Court

Decision date

Before

Source

Judgment (18 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (9)

Cited By (2)