Jones v Treasury Wine Estates Limited

FOSTER J: 1 The plaintiff, Mr Jones, sues the defendant, Treasury Wine Estates Limited (TWE) for statutory compensation pursuant to causes of action based upon provisions of the Corporations Act 2001 (Cth) (Corporations Act), the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) and the New South Wales and Victorian analogues of the Australian Consumer Law. Mr Jones alleges that TWE engaged in misleading and deceptive conduct and also failed to comply with its continuous disclosure obligations under s 674(2) of the Corporations Act. 2 Mr Jones brings this proceeding on his own behalf and on behalf of the members of the following group: [persons or entities] who or which: (i) obtained an interest in TWE Securities during the period from 17 August 2012 to 9:30 am on 15 July 2013 (Relevant Period) by the purchase of those Securities on the financial market operated by ASX; (ii) [deleted] (iii) suffered loss or damage by reason of the Relevant Subsisting Contraventions; and (iv) are not any of the following: A. a related party (as defined by section 228 of the Corporations Act 2001 (Cth) (Corporations Act)) of TWE; B. a related body corporate (as defined by section 50 of the Corporations Act) of TWE; C. an associated entity (as defined by section 50AAA of the Corporations Act) of TWE; or D. an officer or a close associate (as defined by section 9 of the Corporations Act) of TWE. (See par 1(b) of Mr Jones' Further Amended Statement of Claim filed on 23 December 2015 (FASOC)). 3 The proceeding was, therefore, commenced as a representative proceeding under Pt IVA of the Federal Court of Australia Act 1976 (Cth) (FCA Act). It continues to be such a proceeding. 4 At the present time, the parties are engaged in preparing for the initial trial which is currently fixed to commence on 28 August 2017 with an estimated duration of six weeks. They are also planning to conduct a mediation of the dispute in June 2017. 5 The parties agree that a combined opt out and group member registration notice (group notice) should be issued in relation to this proceeding as soon as possible and that some form of "class closure" order should be made now. Unfortunately, they are not in agreement as to the form of the proposed group notice nor are they in complete agreement as to the manner of distribution of the group notice, the scope of information required to be provided by group members as part of the contemplated registration process or the form of class closure and related orders to be made by the Court. 6 By these Reasons for Judgment I address these areas of dispute and resolve them by appropriate orders.

Mr Jones' Case 7 Mr Jones alleges that, in the period from 17 August 2012 to 14 July 2013, TWE failed to advise the Australian Securities Exchange (ASX) of information which was likely to have a material impact on the value of shares in TWE listed on that Exchange and also made statements from time to time that misled or deceived the market about TWE's expected earnings. According to Mr Jones, the substance of the information that was not disclosed was that, at all times from about mid-2012, TWE's US distributors were holding stock (wine) which was substantially in excess of their needs, which was rapidly becoming obsolete and which would, in the near future, become worthless. It is Mr Jones' contention that the alleged concealment by TWE of the true position concerning the retention of stock came to an end on 15 July 2013 when TWE announced expected provisions to its FY13 financial statements and lower than expected earnings growth for FY14. These announcements were made in an ASX Release published by TWE on 15 July 2013. In that Release, TWE said that it had determined to take action in respect of excessive wine inventory held by its US distributors. 8 Immediately after the ASX Release of 15 July 2013 was issued by TWE, the market price of TWE shares fell by almost 14%. That price fell even further in the period from 16 July 2013 to 19 July 2013. Mr Jones says that these falls in the market price of TWE shares were caused by TWE's conduct in not revealing until 15 July 2013 the true position that obtained throughout the period from 17 August 2012 to 15 July 2013 in relation to the levels of stock held by its US distributors and in not revealing the true position concerning its expected earnings for FY13 and FY14 until the same day. 9 Mr Jones contends that he suffered loss by reason of the alleged contraventions on the part of TWE and that group members also suffered similar losses. The particulars of loss currently provided by Mr Jones are in the following terms: Particulars (i) The loss suffered by the Applicant will be calculated by reference to: A. the difference between the price at which he acquired his interest in TWE Securities during the Relevant Period and the true value of that interest; or B. the difference between the price at which he acquired an interest in TWE Securities and the market price that would have prevailed had the Relevant Subsisting Contraventions not occurred; or C. alternatively, the days during the Relevant Period where the traded price of TWE Securities fell as a result of the disclosure information which had not previously been disclosed because of the Relevant Subsisting Contraventions, the quantum of that fall; or D. alternatively, the days after the Relevant Period when the traded price of TWE Securities fell as a result of the disclosure of information which had not previously been disclosed because of the Relevant Subsisting Contraventions, the quantum of that fall. (ii) Further particulars in relation to the Applicant's losses will be provided after the service of opinion evidence in chief. (See par 108 of the FASOC.) 10 In par 108 of the FASOC, the "Relevant Period" is defined as the period from 17 August 2012 to 9.30 am on 15 July 2013 (see par 1(b)(i) of the FASOC and the definition of that expression in Schedule D to the FASOC). I shall use the same definition in these Reasons for Judgment. 11 The FASOC is a lengthy document. It is not necessary for present purposes to examine the pleaded allegations in any further detail.

The MCI Proceeding 12 There is a second proceeding in this Court (Melbourne City Investments Pty Limited v Treasury Wine Estates Limited (NSD 216 of 2015)) (the MCI proceeding) which was transferred to this Court from the Supreme Court of Victoria in early 2015. The definition of the group in the MCI proceeding is substantially the same as the definition of the group in this proceeding. In addition, the claims made by the plaintiff in the MCI proceeding are substantially the same as those made in this proceeding. 13 On 5 July 2016, I stayed the MCI proceeding permanently as an abuse of process (Melbourne City Investments Pty Ltd v Treasury Wine Estates Limited (2016) 243 FCR 474 (the MCI judgment)). 14 MCI has applied to the Court for an order setting aside the order for permanent stay which I made as a consequence of the MCI judgment. I have heard that application and my judgment currently stands reserved. 15 It was submitted on behalf of Mr Jones that the finalisation of the group notice in this proceeding should not await the delivery of judgment in respect of MCI's application to have the order for permanent stay made by me set aside nor should it be delayed while any appeals from that judgment are determined. TWE did not put any submission against this proposition. 16 However, both parties agreed that there was a need to make some appropriate reference in the group notice to the existence of the MCI proceeding and (perhaps) to its current status. There was no agreement as to the precise words to be used. 17 I agree with Mr Jones that the existence of the MCI proceeding and the current status of that proceeding should not interfere with or delay the finalisation of the group notice in this proceeding and its publication to group members.

The Manner of Distribution of the Group Notice 18 TWE proposed that the group notice be displayed, in unabridged form, on the website of Maurice Blackburn, Mr Jones' solicitors, and on the website of the Court. TWE also suggested that the notice should be available for inspection at each of the District Registries of the Court in Sydney, Melbourne, Canberra, Brisbane, Adelaide, Perth, Hobart and Darwin. TWE is prepared to accept that an abridged version of the group notice should be published once in the legal section of a weekday edition in each of The Australian newspaper and The Australian Financial Review newspaper, if the Court considers that publication of the group notice in one or more newspapers is appropriate. In the event that the Court were to embrace publication in the two newspapers mentioned, the form of the abridged notice has been agreed. TWE argued that personal service of the group notice ought not be ordered. 19 Mr Jones, on the other hand, proposed that the group notice be sent directly to group members using information kept on TWE's share register. He argued that such personal service should be effected by email, in those cases where an email address is available or, failing that, by ordinary mail. In addition, Mr Jones agreed that the unabridged version of the group notice should be published on the website of Maurice Blackburn and on the website of the Court but considered TWE's suggestion that an abridged version of the notice be published in the two newspapers to which I have referred as a waste of money and of limited utility. He made no submission directed to TWE's suggestion that an unabridged version of the group notice be available for inspection at each of the District Registries of the Court. 20 Section 33Y of the FCA Act provides as follows: 33Y Notices - ancillary provisions (1) This section is concerned with notices under section 33X. (2) The form and content of a notice must be as approved by the Court. (3) The Court must, by order, specify: (a) who is to give the notice; and (b) the way in which the notice is to be given; and the order may include provision: (c) directing a party to provide information relevant to the giving of the notice; and (d) relating to the costs of notice. (4) An order under subsection (3) may require that notice be given by means of press advertisement, radio or television broadcast, or by any other means. (5) The Court may 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. (6) A notice that concerns a matter for which the Court's leave or approval is required must specify the period within which a group member or other person may apply to the Court, or take some other step, in relation to the matter. (7) A notice that includes or concerns conditions must specify the conditions and the period, if any, for compliance. (8) The failure of a group member to receive or respond to a notice does not affect a step taken, an order made, or a judgment given, in a proceeding. 21 Under s 33Y(5), the Court must not order that notice be given personally to each group member unless the Court is satisfied that it is reasonably practicable, and not unduly expensive, to do so. In determining those questions, the Court must take account of the possible adverse consequences to a group member as well as any possible benefits (Femcare Ltd v Bright (2000) 100 FCR 331 at 348-349 [73] per Black CJ, Sackville and Emmett JJ). 22 The parties agreed that the group notice ought to contain a provision requiring group members who have not retained Maurice Blackburn by the date when the group notice is first published on the Maurice Blackburn website and on the Court website or who have not signed a funding agreement with IMF Bentham Limited (IMF Bentham) by the same date (unfunded group members) to complete an online registration form and to provide certain transactional information in order to be permitted to participate in any settlement. They also agreed that any unfunded group member who fails to comply with these requirements should nonetheless be bound by any settlement of the proceeding with the consequence that his, her or its claims against TWE would be extinguished in the event that a settlement is achieved. The parties part company, however, on the question of whether or not the contemplated registration process should also apply to those group members who have already retained Maurice Blackburn or who have already signed a funding agreement with IMF Bentham (funded group members) with the consequence that any group member (whether funded or unfunded) who fails to register as part of the contemplated registration process will be precluded from sharing in any subsequent settlement. They also disagree on the question of whether group members who fail to register should also now be shut out forever from sharing in the fruits of any judgment or, at least, shut out from sharing in those fruits unless and until the Court orders otherwise. 23 TWE argued that the consequences of a failure to register and to provide the necessary transactional information should be the same whether the case is resolved by settlement or by judgment. It went on to submit that I should make an order now precluding those group members who do not register under the planned registration protocol from sharing in the proceeds of any settlement and also from sharing in the fruits of any judgment given after a contested trial or series of trials. Group members who opt out will, of course, not share in the proceeds of a settlement or a judgment. 24 Mr Jones submitted that, at this stage, the Court should apply those consequences only in the event that the case settles and should not do so now in relation to the scenario where the case does not settle but proceeds to judgment. Mr Jones argued that the most appropriate time for putting in place a procedure which has the effect of excluding some group members from sharing in the fruits of a judgment in a case which does not settle is after judgment in relation to the initial trial, not before. This is the principal issue in relation to class closure which will be addressed below. 25 It was also submitted on behalf of Mr Jones that, whether or not TWE's proposal to use the registration process currently in contemplation to close the class for all purposes is accepted, the consequences for group members of not having the substance of the group notice brought to their attention now (ie the loss of the benefit of any settlement and the loss of the opportunity to opt out) are sufficiently serious to warrant personal service, provided that personal service is reasonably practicable and not unduly onerous to carry out. 26 There was evidence before me to the effect that the cost of a mail out was not likely to be prohibitive. It is difficult to be precise about this because the number of TWE shareholders in the group is not presently known. In addition, Maurice Blackburn is prepared to receive and address enquiries from group members in order to relieve TWE of the potential burden of having to deal with such enquiries. 27 For the reasons submitted by Mr Jones, I am persuaded that personal service of the unabridged group notice is warranted in the present case. I also think that displaying the notice in full on the website of Maurice Blackburn and on the website of the Court is also warranted. So, also, is the proposal to have the unabridged group notice available for inspection at each of the Court's District Registries. 28 In addition, I think that there is benefit in having an abridged version of the group notice published in the two newspapers suggested by TWE, on one occasion in each newspaper. Notwithstanding the submissions made on behalf of Mr Jones to the effect that publication in newspapers is not likely to be very effective these days, I consider that the likely benefit in such publication justifies the likely expense (said to be approximately $20,000 in total). 29 The cost of the mail out and the newspaper advertisements should be borne by Mr Jones initially. Those costs will then become costs in the proceeding which will ultimately fall to be dealt with in due course as part of any settlement or as a result of any judgment. 30 There will be orders accordingly in respect of the manner of distribution of the group notice.

Group Member Registration Information 31 TWE contended that each and every group member who chooses to register under the registration process contemplated by the group notice should be required to provide detailed information regarding all sales and purchases of TWE shares made after 14 July 2013 up to the time of registration. TWE said that the registration process should apply in equal measure to funded group members and unfunded group members so that all group members should be required to provide post-Relevant Period trading data as part of the registration process. 32 TWE argued that this additional information is necessary in order to enable it properly to assess the claimed losses of all group members, both for settlement purposes and for the purpose of having the Court determine group members' claims after a trial. TWE intends to argue at trial that a group member will suffer no compensable loss if the alleged contravening conduct has not left him or her worse off than he or she was before the alleged contraventions occurred and that, accordingly, even if a group member acquired shares in TWE during the Relevant Period at a price which was inflated by reason of TWE's alleged contraventions, that group member will have suffered no loss or damage by reason of those contraventions if he or she subsequently sold relevant TWE shares at a price higher than the price for which he or she acquired them. In particular, TWE intends to argue at trial that, at all times since October 2015, TWE shares have traded at prices which are higher than the highest price prevailing during the Relevant Period. For this reason, TWE submitted that any group member who sold relevant TWE shares at a time after October 2015 or who still retains relevant TWE shares cannot have suffered any loss by reason of TWE's alleged contraventions because the price of those shares since October 2015 has always been greater than the highest price of those shares achieved in the market during the Relevant Period. In addition, TWE contended that any group member who sold relevant TWE shares in the period between 9.30 am on 15 July 2013 and October 2015 should have his or her loss capped at the amount which is the difference between the price paid for those shares and the price received for them on their sale. 33 Mr Jones resisted any process which requires those group members who have already signed a retainer with Maurice Blackburn or a funding agreement with IMF Bentham to provide this additional information. He said that requiring funded group members to provide subsequent trading data would be both time-consuming and expensive. Mr Jones was reluctantly prepared to accept that unfunded group members should be asked to provide this additional information as part of the registration process currently in contemplation. Nonetheless, Mr Jones argued that requiring group members to provide trading data for a period of four years in circumstances where the relevant period spans only eleven months would be oppressive. He said that it would be particularly oppressive for funded group members to have to provide this information where they had not previously been required to do so. In support of these submissions, Mr Jones relied upon evidence in an affidavit sworn by Rebecca Gilsenan, the solicitor for Mr Jones, on 5 August 2016, at pars 19 to 21, to the effect that it would take three months to gather this information in respect of funded group members. Mr Jones went on to submit that Maurice Blackburn is prepared to collect such information from presently unfunded group members which ought to be sufficient to provide TWE with a representative sample from which it might estimate the potential impact of its argument about post-Relevant Period events for settlement purposes. 34 I am not convinced that there is any real distinction between the position of the funded group members and unfunded group members insofar as the collection of post-Relevant Period trading data is concerned. The argument which TWE will advance at trial as to the significance of such data is not specious or lacking in substance. The information which TWE seeks to have collected is plainly relevant and useful for settlement purposes and is also plainly relevant and necessary for any assessment of loss which the Court may ultimately be required to undertake if TWE's fundamental contention concerning post-Relevant Period events is accepted by the Court. Although that contention appears to be essentially a question of principle, it will be best decided against the background of known relevant facts. The registration process currently in contemplation presents a convenient and timely opportunity for the collection of this information. Therefore, I propose to require all unfunded group members to provide to IMF Bentham the information which TWE seeks as suggested by Ms Gilsenan in her affidavit of 4 August 2016 and also in her affidavit of 5 August 2016. IMF Bentham has the means and the experience to collect and collate this information as part of the registration process addressed in the group notice. 35 I also think that Maurice Blackburn and IMF Bentham should immediately take steps to collect this information from funded group members. 36 Funded group members should not be required to register their claims a second time as part of the registration process currently in contemplation. I am content to proceed with Mr Jones' proposal to the effect that funded group members should be deemed already to have registered for the purposes of that process.

The Appropriate Class Closure and Related Orders 37 At [22]-[24] above, I described the dispute between the parties concerning the appropriate class closure and related orders to be made at the present time. 38 To recap: The parties agree that the Court should now make a class closure order for the purposes of settlement and that it should also make an order precluding those unfunded group members who fail to register their claim in accordance with the proposed registration protocol from sharing in the proceeds of any settlement. In addition, TWE argued that the Court should also now make a class closure order for the purposes of the proceeding generally, including for the purpose of establishing entitlement to share in the fruits of any judgment given by the Court after a fully contested trial. 39 Mr Jones contended that the Court ought not close the class now for all purposes but only for the purpose of settlement. He argued that there was no reason for the Court to make an order now, at this point in the litigation, which had the effect of precluding group members who did not register their claim in accordance with the proposed registration protocol from sharing in the fruits of any judgment subsequently granted by the Court. 40 At its core, this dispute is one of timing. Both parties agreed that, in order sensibly to identify who might be entitled to share in the proceeds of a settlement and, indeed, in the fruits of a judgment, a registration process should be undertaken and a class closure order should be made at some time. The real question is: Would it be an appropriate exercise of the Court's discretion (assuming, for the moment, that the Court has power to make the proposed order) for the Court to make an order now precluding those group members who do not register as required in accordance with the proposed registration protocol from sharing in the fruits of any judgment subsequently given on the merits? 41 The parties agreed that, under s 33ZF of the FCA Act, the Court has power to make a class closure order and a preclusion order for the purposes of settlement. They both submitted that there is long-standing and consistent authority supporting that proposition (see McMullin v ICI Australia Operations Pty Ltd (1998) 84 FCR 1 at 4 per Wilcox J; Matthews v SPI Electricity Pty Ltd (No 13) (2013) 39 VR 255 at 262-277 [22]-[80] per Forrest J and the cases referred to therein). Of course, in Victoria, s 33ZG of the Supreme Court Act 1986 (Vic) gives to the Supreme Court of that State an express power to require group members to take a specific step by a particular date. There is no similar provision in Pt IVA of the FCA Act. 42 As I noted at [38] above, the parties also agreed that the Court should now make a class closure order for the purposes of settlement. 43 While there may be something to be said for the proposition that the Court does not have the power to make any kind of class closure order or preclusion order (whether for the purposes of settlement or judgment), I think that the better view is that it does have that power, at least for the purposes of settlement and probably also in connection with a judgment after a contested trial. The authorities in this Court and in the Supreme Courts of the States speak with one voice on this issue. Those authorities are too well-established for a single judge of this Court to revisit the point now, especially when the parties in this matter agreed that the Court has power to make such an order for the purposes of settlement. 44 Mr Jones argued that the Court has no power to make a class closure order and preclusion order at any time before judgment except for the purposes of settlement. He submitted that any order requiring group members to take positive steps to participate in or benefit from a Pt IVA proceeding would conflict with a fundamental aspect of that Part - the passive role of group members prior to the initial trial. He reminded the Court of the observations made by the plurality in Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1 (Mobil) at 31-32 [38]-[41] per Gaudron, Gummow and Hayne JJ to the effect that the equivalent representative proceedings procedure in the Victorian Supreme Court was an "opt out" procedure, not an "opt in" procedure, and that, under the legislation which created and now regulates representative proceedings, group members need take no positive step in the prosecution of the proceeding to judgment in order to gain whatever benefit prosecution of the proceeding might bring. 45 In P Dawson Nominees Pty Ltd v Brookfield Multiplex Ltd (No 2) [2010] FCA 176 (Multiplex) at [16]-[17], Finkelstein J said: Although there is a power to make the orders sought under s 33ZF(1), it is another matter whether that power should be exercised. The starting point is that the class actions regime under Part IVA of the Federal Court Act is designed to require little or no active involvement by group members. A group member is a group member principally for the limited purposes of taking the benefit, or suffering the burden, of findings on common questions (ie questions that are common to the claim brought by the named applicant and claims that may be pressed by group members). In an action where money relief may be sought by a group member, the group member will generally only be required to provide specifics about the quantum of his or her claim after the common questions have been resolved and that may be in a separate action. Given the intent of the class action regime, there must be some compelling reason demonstrated before a court will order group members to go beyond their otherwise essentially passive role. 46 Mr Jones contended that the facilitation of settlement was an example of a compelling reason of the kind which Finkelstein J had in mind in Multiplex but went on to submit that extinguishing before judgment the rights of group members to share in the fruits of any judgment by the application of a registration process of the kind under consideration here would not constitute such a reason. 47 Mr Jones submitted that orders made pursuant to s 33ZF(1) of the FCA Act were required to satisfy the commands of the section, that is, they must be an order which: … the Court thinks appropriate or necessary to ensure that justice is done in the proceeding. 48 Justice Beach explained these words in Earglow Pty Ltd v Newcrest Mining Ltd (2015) 230 FCR 469 at 479-481 [31]-[37] in the following way: Part IVA - Some General Observations It is necessary to identify the power that Newcrest says I should exercise. Both the applicant and Newcrest identified only the power in s 33ZF(1) as supplemented or contextualised, if at all, by s 37M. Further, the applicant accepted that s 33ZF(1) empowered the Court to make orders of the type sought, providing that the statutory test was satisfied and that it was an appropriate exercise of discretion, both of which it denied had been established by Newcrest in the present case. It is appropriate to make some general observations concerning s 33ZF(1) before turning to the detailed arguments. First, it is true that a central feature of Pt IVA is the general notion, absent the invocation of ss 33Q or 33R, that a group member who has not opted out, may play or is entitled to assume that he will play a passive role. But it is erroneous to elevate such a notion to an entitlement. Part IVA does not enshrine any such entitlement. Moreover, the power in s 33ZF(1) would deny such an entitlement. And there are many examples where a court has acted in a manner inconsistent with such assumed passivity, let alone its elevation to the status of a canon of Pt IVA. There is no authority that binds me to accept such an entitlement. Second, although in a general sense s 33ZF(1) has been described as a plenary power, nevertheless it is not unlimited. It is in one sense both trite and question begging to assert that the power must be exercised judicially. But let me pass to the language of s 33ZF(1) itself. It uses the language "make any order the Court thinks appropriate or necessary to ensure that justice is done in the proceeding". Grammatically, "thinks" is to be applied distributively, so that it reads "thinks appropriate" or "thinks necessary"; there is no "is" before "necessary". But as applied distributively, "thinks appropriate" has a lower threshold than "thinks necessary". But in the composite phrase, the concept is "thinks appropriate… to ensure that justice is done in the proceeding" [my emphasis]. In other words, although the words "thinks appropriate" have a lower threshold than "thinks necessary", nevertheless the relevant element of necessity in another guise is enshrined in the coupling of the words "to ensure that". In summary, the question becomes whether I think it is appropriate, to ensure that justice is done in the proceeding, to make the orders sought by Newcrest. It is not whether I think it to be merely convenient or useful per se. Section 33ZF(1) is not a licence for me to impose my own expansive case management philosophy. Rather, I must be satisfied that any order that is made satisfies the statutory test. Now I accept that s 33ZF(1) is a very wide power and ought not to be construed narrowly (McMullin v ICI Australia Operations Pty Ltd (No 6) (1998) 84 FCR 1 at 4 and Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Co Inc (1994) 181 CLR 404 at 421). Nevertheless, any exercise of power has to fit within the statutory formulation. Much of Newcrest's argument has described the effect of the orders sought as "contributing" to an efficient resolution, being "of assistance" to such a resolution, being "helpful" or "facilitating" such a resolution. Now these are all laudable objectives, but that is not the language of s 33ZF(1). Newcrest cannot go so far as to maintain that such orders are necessary for the applicant to make out its individual case or the case on the common issues. Moreover, and for reasons that I will elaborate on, Newcrest has not established that such orders are appropriate to ensure a proper adjudication thereof and therefore to ensure justice in the proceeding. Now I accept that the Court has the power to order the acceleration of the adjudication of individual claimants' cases. But the Court should be cautious in doing so outside the contemplated statutory mechanisms of s 33Q and s 33R. Section 33Q is not relevant in the present case. Section 33R is permissive rather than coercive. Section 33ZF(1) can be used coercively, but it has the higher threshold "to ensure that justice is done in the proceeding". Moreover, it cannot be used as a vehicle to rewrite the procedures and constraints expressed in or necessarily implied by other provisions of Pt IVA (see Courtney v Medtel Pty Ltd (2002) 122 FCR 168 at [52]). Third, reference has been made to s 37M(3), which requires the Court to interpret and apply the civil practice and procedure provisions in a way that best promotes the overarching purpose, viz, the just resolution of disputes "according to law" (s 37M(1)(a)) and "as quickly, inexpensively and efficiently as possible" (s 37M(1)(b)). Let me assume for the moment that s 33ZF(1) is a "civil practice and procedure provision" (s 37M(4)(b)), although this is not beyond doubt given that one dimension to s 33ZF(1) could arguably travel beyond that description. Section 37M cannot be used to give a broader meaning or scope to s 33ZF(1) than I have indicated above. I say this for at least two reasons. The phrase "according to law" in s 37M(1)(a) takes one back to the proper construction of s 33ZF(1) in any event. Further, if there is any tension between the contextually specific provision of s 33ZF(1) and the general provision of s 37M, the general may be impliedly limited. Finally, even if s 37M had work to do and scope in the present context, because the words "ensure that justice is done" can embrace the content of the overarching purpose, for the reasons set out later at [141] I do not consider that the orders sought by Newcrest, if made, would best promote the overarching purpose. Fourth, and for completeness, even if the statutory test in s 33ZF(1) is satisfied, that merely empowers the Court to make the relevant order sought. But the Court still has a discretion to refuse the order. But perhaps such distinctions are more of theoretical difference than practical significance. If the order would satisfy the condition stipulated, it may be difficult to see why any residual discretion to refuse would then be exercised. (Emphasis in original.) 49 I respectfully agree with his Honour's exposition of the meaning of s 33ZF(1). See also the observations of the Full Court in Money Max Int Pty Ltd (Trustee) v QBE Insurance Group Ltd (2016) 338 ALR 188 (Money Max) at 219-221 [162]-[166]. 50 Mr Jones said that the Court could not and should not make orders under s 33ZF(1) which travel beyond what is necessary to advance the legislative purpose of Pt IVA. In the present case, so he submitted, the additional class closure order and associated preclusion order sought by TWE do not satisfy that requirement and would operate only to serve the interests of TWE because those orders would have the effect of limiting TWE's total liability to the group before the initial trial had commenced. 51 TWE submitted that the Court had power to make the additional class closure order and related preclusion order which it seeks. It argued that there is no logical or rational difference between closing the class for settlement purposes and closing the class for the purposes of judgment, whether before or after trial. 52 On the question of discretion, TWE submitted that the making of the additional class closure order and related preclusion order would alleviate the potential for the lead plaintiff to have to address a conflict between the interests of funded group members and those of unfunded group members. 53 Next, TWE submitted that the Court's ability to approve any settlement would be significantly impaired if its proposed orders were not adopted. The suggestion was that there would be an unfair discrimination between unfunded and funded group members. 54 Finally, TWE submitted that Mr Jones' more restricted class closure order would place undue pressure on TWE to settle because, were it not to do so, it would face the prospect of having to go to trial against an open class. 55 TWE went on to support its arguments by referring to four cases in this Court where, so it was submitted, class closure orders and preclusion orders of the type and scope now propounded by it in this proceeding were made. It appears that, in three of those cases (Vlachos v Centro Properties Limited, VID 366 of 2008, par 9 of Orders made on 17 December 2008 by Ryan J; Earglow Pty Ltd v Newcrest Mining Ltd, VID 406 of 2014, par 9(b) of Orders made on 29 July 2015 by Beach J; and Mitic v OZ Minerals Limited, VID 114 of 2014, par 23(b) of Orders made on 4 December 2015 by Middleton J), judges of this Court made orders prior to trial precluding non-registrants from participating in either a settlement or a judgment and thus purported to deprive non-registrants of their rights under Pt IVA prior to any judicial determination of those rights. A fourth judge, Murphy J, made very similar orders in Kelly v MIS Funding No.1 Pty Limited, VID 1483 of 2011, par 8 of Orders made on 3 April 2014, but, on this occasion, expressly stated in the order that non-registrants were to be excluded from sharing in any settlement or judgment "… without leave of the Court". None of these orders was supported by any reasons. They all appear to have been made by consent. 56 I was also referred to the judgment of Bromberg J in Winterford v Pfizer Australia Pty Ltd [2012] FCA 1199. In that case, his Honour was asked to make a class closure order which was substantially the same as the order sought by TWE here. As is the case here, his Honour was also asked to make a further order precluding any group member who did not register his or her claim in accordance with the proposed registration protocol from sharing in the proceeds of any settlement or the fruits of any judgment. 57 At [3], Bromberg J held that the Court had power to make orders of the kind sought but went on to decline to do so in the case before him on discretionary grounds. 58 I doubt that this Court has power to make an order before the initial trial of a Pt IVA proceeding which provides that a group member's rights to share in the fruits of a subsequent judgment in that proceeding will be extinguished or extinguished subject to being revived "with the leave of the Court" unless the group member registers in accordance with a registration process ordered by the Court under s 33ZF or s 33V or under some other section in the FCA Act. It seems to me at the moment that such a proposition is inconsistent with the terms of Pt IVA as an opt out scheme and inconsistent with the reasoning of the High Court in Mobil. 59 In Money Max, at 225-227 [189]-[198], when describing the use of closed class representative proceedings and the practice of opening and closing class definitions, the Full Court made a number of observations which seem to indicate that the Full Court accepted as a given that, in a representative proceeding under Pt IVA of the FCA Act, the Court has power to close an open class at any time, whether before or after judgment and, at the same time, has the power to make an order precluding those group members who do not register under a registration protocol such as the protocol in contemplation in the present case from sharing in the proceeds of any settlement or judgment in the proceeding. However, the point presently at issue in this proceeding was not squarely raised in Money Max and was not directly in issue in that case. Nonetheless, the Full Court's remarks may be seen as providing some judicial support for the proposition that the Court does, in fact, have the power to extinguish a group member's Pt IVA rights not only for the purposes of settlement but also for the purposes of a subsequent judgment. 60 However, I do not propose to dwell on the question of power. For the moment, I will assume that the Court has the requisite power and move on to consider the question of whether it should exercise that assumed power in the present case. 61 In my judgment, even if the Court has the requisite power, it should not exercise it at the present time in order to make the additional class closure order and associated preclusion order sought by TWE. There is no reason to make such orders now. In my view, the appropriate time to consider making orders of this type is after judgment is delivered in respect of the issues to be determined at the initial trial and perhaps even after other questions have been decided. Not now. 62 My reasons are: (1) Such an order is neither appropriate nor necessary at the present time in order to ensure that justice is done. Any potential conflicts of interest can be managed if and when they arise. Not making such an order now has no bearing upon the position of registered and unregistered group members in relation to settlement. There is no discrimination between those two subgroups as a result of the wider class closure and preclusion orders not being made now. (2) The so-called unfairness visited upon TWE by not making the orders proposed by it is speculative and, in any event, irrelevant. To the contrary, the making of the orders sought by TWE would provide a real forensic advantage to TWE which could then approach settlement negotiations and the initial trial knowing that its exposure was limited to those group members who had registered their claim within time. (3) While it may be obviously both sensible and practical to make a class closure order and preclusion order at some time in the future in the event that the case does not settle, as I see matters at the moment, the most appropriate time to consider doing so is after judgment is delivered in relation to the initial trial and, most probably, before any hearings concerning individual cases and relief are commenced. It is by no means certain that, even then, a class closure order and preclusion order should be made. (4) There is no good reason to shut out unregistered group members now if the case does not settle and goes to trial and is ultimately determined by the Court. Those group members who do not opt out as part of the opt out process addressed by these Reasons should retain all of their rights at least until judgment on liability.

Conclusions 63 The arguments which the parties have made in support of the various orders championed by each of them were both reasonable and of assistance to the Court. All of the issues currently in play concerned important matters of substance which, in the end, the Court was obliged to resolve. Each party has had some successes and some failures. In those circumstances, I think that the costs of and incidental to the hearing before me on 9 August 2016 and of preparing subsequent submissions relating to the issues raised at that hearing should be costs in the proceeding. 64 There will be orders giving effect to these Reasons for Judgment. I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.