Consideration of the issues
15 The centrepiece of the submissions of the respondents on the first issue is the recent judgment of the Full Court in Philip Morris (Australia) Ltd v Nixon [2000] FCA 229. The reasons of the members of the Full Court can, for present purposes, be approached at two levels. The first is what was required, in the abstract, to enable a proceeding to be commenced as a representative proceeding under Pt IVA. The second is what were perceived to be the deficiencies in the case pleaded by the applicants in that matter which led to a conclusion the proceeding (as then framed (per Sackville J) or at all (per Spender and Hill JJ)) could not be brought as a representative proceeding under that Part.
16 It is convenient to start with the leading judgment of Sackville J with whose reasons, with one qualification, both Spender and Hill JJ agreed. After referring briefly to the history of the proceeding and outlining the legislative scheme, Sackville J analysed, in some detail, the pleadings. It would be unproductive for me to endeavour to summarise or paraphrase that analysis and equally unproductive to repeat it by quoting it. It is sufficient to note that the claim or claims were by those suffering the alleged ill effects of smoking and were made against Australian manufacturers and distributors of cigarettes. The claims were cast in terms that would justify a conclusion that the allegation was that the ill effects suffered by any given member of the group was caused by smoking cigarettes manufactured or distributed by any one or more of the respondents: see par 61 of the judgment of Sackville J.
17 His Honour then discussed the way in which the issue of whether the proceeding could be brought under Pt IVA had been approached by the primary judge. Significantly, for present purposes, reference was made to the approach of the primary judge to the requirements of s 33C(1)(a). The primary judge had referred to one of his earlier judgments on this question, Symington v Hoechst Schering Agrevo Pty Ltd (1997) 78 FCR 164, in which he had held that each group member must have a claim against each respondent. Sackville J's summary of the primary judge's reasons continued and reference was made to a submission made to the primary judge by one respondent that s 33C(1)(a) had not been complied with because some applicants may not have had claims against some of the respondents by reason of the fact that they did not smoke the cigarettes of that respondent or the respondent did not manufacture or distribute the cigarettes smoked: see par 89. Sackville J then set out the reasons of the primary judge for rejecting this submission. Those reasons, somewhat simplified, were that the claim of the applicants was founded on an allegation of collective conduct of all three respondents designed to create a false community perception about the risks associated with cigarette smoking.
18 After discussing several other aspects of the primary judge's reasons, Sackville J referred to the rejection by the primary judge of a contention that the represented group had been impermissibly defined by reference to subjective criteria. This is a matter I return to later in these reasons.
19 After briefly referring to the submissions made in the application for leave to appeal, Sackville J discussed the procedures involved in representative proceedings and referred first to what, concerning those procedures, was common ground between the parties before the Full Court. One issue not in dispute was described by his Honour at par 108:
"Secondly, Senior Counsel for the applicants expressly accepted that in order to satisfy par (a) of what the High Court has described as the "threshold requirements" imposed by s 33C(1) of the Federal Court Act (Wong v Silkfield, at 381, per curiam), it was necessary that the applicants' pleading allege facts that establish that they and every member of the represented class have a claim against every respondent. For their part, the respondents accepted that the expression "the same person" in s 33C(1)(a) is to be read as including more than one person (see Acts Intepretation Act 1901 (Cth), s 23(b)), provided that all applicants and members of the represented class make claims against all respondents to the proceedings."
20 Sackville J then noted that the parties did not explore further the relationship between the procedural requirements of Pt IVA and the general principles governing pleadings in the Federal Court because, perhaps, of the common ground including the matter referred to in the preceding paragraph. However his Honour did explore that relationship and, in particular, did so by reference to the report of the Law Reform Commission ("LRC"), Grouped Proceedings in the Federal Court, Report No. 46, 1988. As to the view of the LRC concerning relief against the same respondent accepted to be reflected in s 33C(1)(a), his Honour said at par 113:
"The LRC's recommendations were specifically designed to provide an effective procedure to enable people suffering loss or damage in common with others as a result of a wrongful act or omission by the same respondent (par 69, 95, 133). It therefore plainly did not envisage that the grouped procedure could be employed to bring a proceeding against more than one respondent, in circumstances where some members of the group make a claim against one respondent only and others make a claim against another respondent."
21 After surveying other LCR recommendations and discussing the extent to which they had been reflected in Pt IVA, Sackville J summarised the procedural requirements imposed by that Part. Of critical importance in the present proceeding is the third requirement described by his Honour in the following passage (pars 126 and 127):
"Thirdly, as the parties accepted, s 33C(1)(a) requires every applicant and represented party to have a claim against the one respondent or, if there is more than one, against all respondents. This conclusion follows from the language of s 33C(1)(a) itself and is consistent with the approach taken by the LRC in Grouped Proceedings. It is also consistent with the structure of the legislation. For example, s 33D(1)(a) (which provides that a person who has a sufficient interest to commence a proceeding on his or her own behalf against another person has a sufficient interest to commence a representative proceeding against that person on behalf of the other persons referred to in s 33C(1)(a)) is clearly drafted on the assumption that all applicants and represented persons will have claims against the same person.
It follows that s 33C(1)(a) is not satisfied if some applicants and group members have claims against one respondent (or group of respondents) while other applicants and group members have claims against another respondent (or group of respondents). The requirement in s 33C(1)(b), that the claims of all group members are in respect of or arise out of the same, similar or related circumstances, is a necessary but not sufficient condition for the commencement of representative proceedings. Of course, if there are two sets of claims against two sets of respondents, it may well be that each can be the subject of representative proceedings. It may even be that directions can be made for them to be heard together: Ryan v Great Lakes Council (1997) 149 ALR 45, at 48, per Wilcox J. But they cannot both be the subject of the same representative proceedings."
22 I should, at this point, make the following observation. It was suggested in this matter that this passage should be read as if the reference to "against all respondents" in the first sentence is a reference to each and every respondent in the sense that every group member has a common claim against each and every respondent. However Sackville J appears to be doing no more than repeating and adopting what he had earlier identified as common ground. That is, the concession of senior counsel for the applicants recorded in par 19 above that the applicants and every group member have a claim against every respondent.
23 His Honour went on to observe that satisfaction of s 33C(1) is to be ascertained by reference to the pleadings and, relevantly for present purposes, said (see par 128):
"… the pleading must make claims on behalf of the applicant and each member of the represented class against the same respondent or, if more than one, against all respondents. It is not permissible in a representative proceeding to plead a claim on behalf of some group members against one respondent and a separate claim on behalf of other group members against another respondent."
24 I think it is important to observe that it is clear that in using the word "separate claim" his Honour was not treating the word "claim" as having some narrow meaning such as a particular cause of action, but was giving it a broad meaning and was using the adjective "separate" to highlight that the claim was by other people against another person.
25 Sackville J then discussed how pleadings might be framed in representative proceedings and the extent to which a liberal view might be taken about their contents. In the course of doing so his Honour said (at par 136):
"Whether proceedings at a relatively high level of generality are permissible will depend on the circumstances of the particular case and the stage it has reached. The facts material to the claims of each member of the represented group might not be necessary to ensure that the respondent adequately understands the case made on behalf of the represented class and has a fair opportunity to meet that case. This may be the position, for example, where representative proceedings are brought in order to provide a mechanism to enable one or more common issues of law or fact to be resolved in a manner that binds the respondent and all class members, rather than to determine finally the claims of each class member. (See Federal Court Act, ss 33Q, 33R.)"
26 Having discussed in these general terms the provisions of Pt IVA, Sackville J embarked on an analysis of the pleaded case in that proceeding. His Honour rejected the contention, accepted by the primary judge, that the case involved an allegation of collective conduct on the part of all three respondents (see particularly pars 141-143). Sackville J concluded the flaws in the pleadings he had identified had certain consequences. The first concerned the requirement in s 33C(1)(a). That consequence was identified by his Honour in the following passage which the respondents particularly rely on in this matter (pars 155 and 156):
"The first consequence of these flaws is that, in my opinion, the statement of claim does not establish that the requirements of s 33C(1)(a) of the Federal Court Act have been met. As I have explained, the applicants do not plead a case based on the collective conduct of all three respondents. What is alleged, in essence, is that each of the respondents, over a period of twenty-five years or more, engaged separately in misleading or deceptive conduct. Each group member is said to have been influenced to smoke, continue smoking or fail to quit smoking by the conduct of one or other of the respondents. This does not constitute the pleading of a claim by all applicants and group members against all respondents, as s 33C(1)(a) requires. Rather, the statement of claim pleads that some applicants and group members have claims against one respondent, while others have claims against the other individual respondents. The statement of claim also alleges negligence on the part of the respondents over a period of some forty years.
It perhaps might be possible to plead a case that every member of a represented class was influenced to commence or continue smoking by the separate conduct of all three respondents and, for that reason, has a claim against all three respondents. Such a case may well encounter formidable factual difficulties, since the circumstances of each group member will vary greatly and it might be thought unlikely that every one of them was influenced to begin or continue smoking by the conduct of each of the three respondents. For present purposes, however, the question is whether the statement of claim actually pleads a case of this kind."
27 His Honour went on to elaborate on why, in substance, collective conduct had not been alleged and why, additionally, the statement of claim failed to establish that the claims of group members were "in respect of, or arise out of, the same, similar or related circumstances" as required by s 33C(1)(b). His Honour also doubted that the proceeding involved common questions of law or fact though did not express a concluded view on that question.
28 Sackville J then explained why he would have given leave to replead, an approach not adopted by Spender and Hill JJ who, as the majority, declared that it was inappropriatethe claims of the applicants be pursued by means of a representative proceeding and ordered the proceedings not continue under Pt IVA.
29 In my opinion, the decision of the Court in Philip Morris (Australia) Ltd v Nixon (supra) does not establish, for present purposes, more than that a proceeding may be brought as a representative proceeding against a number of respondents under Pt IVA if, and only if, each applicant and every member of the representative group has a claim against each respondent. It does not establish that what constitutes a claim is to be viewed narrowly and that applicants and group members must, on that basis, have the same claim against all respondents. However plainly, as Sackville J discussed, the claims must have sufficient in common to satisfy the requirements of both pars (b) and (c) of s 33C(1).
30 There is a clear requirement in s 33(1)(a) that the group members must have, if there is one respondent, a claim against that respondent. That is, each member must have a claim against that respondent. However it is equally clear that the claim, for the purposes of s 33C(1)(a), need not result in the same relief: s 33C(2)(a)(iv), need not be based on the same conduct of the respondent: s 33C(2)(b)(ii) and may arise out of different transactions with the respondent: s 33C(2)(b)(i). What the claims must have as unifying characteristics to permit their prosecution under Pt IVA is that they are founded in the same, similar or related circumstances: s 33C(1)(b) and give rise to a substantial common issue. The common issue can be either of fact or law: s 33C(1)(c).
31 These features of Pt IVA support the conclusion that claims which are not precisely the same can be made under that Part against several respondents (as long as all applicants and group members have a claim against each respondent). It is also a conclusion consistent with the LRC's report. An example was given in the report (par 65) of the type of situation to which the form of litigation proposed by the LRC was directed:
"Actions by shareholders in respect of misleading conduct. A group of small shareholders suffer considerable financial loss as a result of misleading advice received from stockbrokers and the directors of the company in which significant amounts of their savings were invested. The shareholders also claim that the company failed to comply with the Australian Stock Exchange listing rules by neglecting to inform the market of factors likely to materially affect the market price of shares. Apart from rights in negligence against the stockbrokers, the shareholders would have had rights against the directors arising from the Companies Codes and the Securities Industry Codes. A grouping procedure could facilitate the recovery of loss by those affected and would offer the advantage of helping to ensure that all concerned were informed of the claim and shared in the result without having to commence individual proceedings."
32 This example contemplates claims, as to their legal foundation, of a different character against the directors on the one hand (rights arising under the then Companies Codes and Securities Industry Codes) and the stockbroker on the other (negligence). I acknowledge, however, that the proposal of the LRC for grouped proceedings was not adopted by Parliament: see the remarks of the Attorney-General quoted by Lindgren J in Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd (1998) 84 FCR 512 at 521, and comments of the type made by the LRC just quoted must be approached with that in mind.
33 What is meant by "claim" and the need for an identity of causes of action amongst group members (and applicants) was considered by a Full Court in Finance Sector Union of Australia v Commonwealth Bank of Australia (1999) 94 FCR 179. One issue considered by the Full Court was whether a claim for a penalty under the Workplace Relations Act 1996 (Cth) could be brought in the same representative proceeding and another was whether a representative proceeding could be brought in which a claim founded on contractcould not be maintained by one applicant. The Full Court said at 186:
"Counsel for CBA also contended that the word "claims" is apposite only to civil proceedings; so this is an indication that parliament did not intend Pt IVA to be used for penalty proceedings. This submission overlooks the fact that the word "claims" has always been used in relation to proceedings in this court, including penalty proceedings: see O 4 of the Federal Court Rules. In enacting legislation specific to the court, parliament must be taken to have been aware of its forms and terminology. Further, s 22 provides:
"The Court shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided." (Emphasis added)
Clearly, "claim" is used to encompass everything that might lawfully be brought before the court for a remedy. There is no reason to think that the same word was not used with the same general sense in s 33C.
The effect of FSU having no contract claim
The third basis upon which it was contended that the proceeding was not well-commenced was that FSU has no contract claim against CBA. It is said each applicant must assert a common cause of action in relation to each claim against a respondent.
In Ryan v Great Lakes Council (1997) 149 ALR 45, Wilcox J was concerned with a case where the group representative had a personal claim against some respondents, but not all of them. He accepted a submission that the proceeding was defective in relation to claims against the other respondents. At 48 Wilcox J said:
"in order to utilise the Pt IVA procedure against a given respondent, the applicant must have a personal claim against that respondent that is shared by at least six other persons. The legislation does not prevent several respondents being joined to a single Pt IVA proceeding, so long as the commencement and standing requirements are met by the applicant in respect of each of them."
The present case is different from Ryan. FSU has a s 178 claim against the respondent, although not an accrued claim. Both parties accept the two claims constitute but a single "matter". We think this understanding is correct: see Re Wakim; Ex parte McNally (1999) 163 ALR 270 at [140]. From this and from the wording of s 33C(1) it follows that FSU is entitled to bring the claims in the "matter" before the court, notwithstanding that it would not be entitled to take any personal benefit from the success of one of them, the contract claim, and notwithstanding that it has no contract claim of its own. There is no reason to read down the plain words of s 33C(1).
If this view is incorrect, in practical terms it would not matter. The second applicant, Mr Macey, has a personal claim for an order under s 178(6). He is therefore entitled to represent the group members, who have similar claims. It would be immaterial that there happened to be another applicant who was not so entitled."
34 It is apparent from this judgment that the word "claim" is not to be viewed narrowly. It is also apparent that if one claim is brought that is maintainable by all applicants and all members of the representative group, then the proceeding may be brought under Pt IVA even if one applicant cannot maintain one of the causes of action pursued in the proceeding by another applicant and members of the representative group.
35 It may be that the word "claim" in s 33C(1)(a) is not to be treated as a reference to one common cause of action or one common "(any)thing that might lawfully be brought before the court for a remedy". That is, members of a group who have different causes of action or "things" against the same respondent can be involved in a proceeding against the respondent under Pt IVA as long as the other requirements of s 33C are met. Section 33C(1)(a) does not speak of seven or more persons having "the same claim" against the same person and the language of the section does not warrant some narrow view of what is a claim. However, for reasons that follow, it is unnecessary to explore this question further as the applicant has demonstrated that he and each group member have at least one claim which is the same claim against each respondent, namely the application for a declaration pursuant to s 163A of the TP Act.
36 Senior counsel for the applicant identified the claim for declaratory relief based on s 163A referred to in pars 6 and 7 above as an application by the applicant and all members of the representative group against each respondent. I accept it is in the sense that as against each respondent, a claim (in both a narrow sense and also a broader sense) is made by the applicant and all members of the group. It is a bona fide claim in that it provides a springboard for a claim for damages if reliance can be established. As evident from the observations of Sackville J referred to in par 25 above, such claims are not alien to a proceeding properly brought under Pt IVA.
37 However, even if one moves beyond the application, the position remains, in my opinion, that the proceeding is of a character that can be brought under Pt IVA and involves a claim by all group members against each respondent with perhaps one qualification discussed in par 38 below. The structure of the statement of claim is such that each aspect of the conduct of the respondents impacting on a person is alleged to have impacted on the applicant and the group members. For example alleged representations are pleaded as having been made to the applicant and group members. Similarly the pleadings allege each aspect of the conduct of the respondents impacted on the applicant and members of the group, with the same effect. Again, for example, the representations of the respondents are alleged to have resulted in the applicant and members of the group not accepting the takeover offer and allowing the offer to lapse. Similarly the general consequences of the conduct impacting in the ways pleaded are alleged to be the same for the applicant and group members. For example it is alleged that the conduct of the respondents in making representations constituting conduct contravening s 52 resulted in each of the applicant and the group members suffering loss and damage.
38 The qualification referred to in the preceding paragraph concerns par 41 of the statement of claim. It reads:
"41. By reason of the Respondents' conduct alleged in paragraphs s 9-26 inclusive, 28, 31, 34, 36, 39 and 40 above and in reliance upon the representations contained in paras 26, 28, 31, 34 and 36 above, the Applicant and the group members did not accept the varied takeover offers and allowed those offers to lapse."
This is a reference to the making of the implied representations summarised in (i) in par 10 above (pars 9-26 and 34 of the statement of claim), the implied representations as to future matters summarised in (ii) (pars 28, 31 and 36 of the statement of claim), and the failure to inform summarised in (iii) (pars 39 and 40 of the statement of claim). Particulars of this paragraph have been provided by the applicant which read:
"33. It is evident from paras 26, 28, 31, 34 and 36 that the Applicant alleges that the same representations were made by each and every of the Respondents. The allegation is that the Applicant and the group members relied upon one or more of those representations by one or more of the Respondents."
(Emphasis added)
Several respondents pointed to this particular as indicating that the claims are not advanced on the basis that there was reliance on the representations of all respondents. The particulars contemplate that there may have been, on the part of the applicant and group members, reliance on representations of only one or some of the respondents giving rise to a claim for damages against one or some only. While this is so, it does not involve an abandonment of the claim that representations were made to the applicant and each group member and the contention on behalf of them that the making of the representations involved misleading or deceptive conduct and a breach of duty. The application remains one in which claims are made by the applicant and all the group members against each respondent.
39 Use of the format in the pleadings referred to in par 37 above is not, in my opinion, merely designed to establish common claims as a matter of form. The pleadings are intended to identify the claims of the applicant and members of the representative group. The respondents submitted, in various ways, that it is unlikely or improbable that the way the claims are pleaded reflect what is likely to have occurred even if the claims can be made out. That is, it is unlikely that all the 33,000 or so shareholders who have, according to the solicitors retained by the applicant, signified interest in the proceedings or all the 68,000 or so shareholders who declined to accept the offer would have appreciated that all the pleaded representations were made (which are the immediate source of alleged liability), and all the more so given that they are implied representations to be inferred, in part, from other implied representations, would have all acted on all of them in the way alleged or would all have suffered loss for the reasons alleged.
40 However that approach, in my view, invites speculation that is not, in the circumstances, justified. The present proceeding is, in this respect, far removed, in my opinion, from the situation considered in Philip Morris (Australia) Ltd v Nixon (supra) where the Full Court, and in particular Spender and Hill JJ, were satisfied that the case pleaded, which plainly was cast in the widest of terms as to time, the impugned conduct and the consequences of that conduct, sought to raise claims that could not satisfy the requirements of s 33C(1)(c). The position of the respondents in this proceeding is, at best, akin to the situation described by the Full Court in Femcare Ltd v Bright [2000] FCA 512 at para 93 of a respondent being able to establish only uncertainty as to whether the claims of all group members will be made out against each respondent. In this respect, the description of the representative group referred to in par 8 above serves to limit the group on whose behalf the proceeding is brought to those who suffered loss as a result of the conduct of all or any of the respondents. This description allows for the possibility, perhaps to the ultimate benefit of some respondents (discussed in pars 42-44 below) that the claims might not succeed in their entirety against all respondents. However by adopting that description, the character of the claims themselves as formulated is not, in my opinion, altered. The description of the class in this way does not govern and qualify the terms on which the orders are sought in the application nor the terms on which the claims are pleaded and relief sought.
41 Counsel for Grant Samuel pointed to the allegations made in the statement of claim concerning the conduct of GIO and the directors preceding the publication of the Part B statement (such as the holding of the Annual General Meeting of GIO in November 1998) as providing, as I apprehended it, a basis for differentiating the claims against it from those against GIO and the directors. However the principal focus of the entire case of the applicant and group members is the contents and issuing of the Part B statement with which Grant Samuel was plainly involved. The reliance on earlier conduct is really, for present purposes, immaterial.
42 The description or identification of the class was the subject of submissions concerning not only compliance with s 33C(1) directly but also whether the description would offer the respondents the benefits of representative proceedings of the type flowing from the performance of the duty required by s 33ZB(a) as made effective by s 33ZB(b). That is, if the applicant fails, for example, to demonstrate contravention of s 52 or breach of an alleged common law duty, how would that conclude the proceedings to the benefit of the respondents in some final way. The question is raised because the group, as discussed earlier, is identified as being persons who suffered loss as a consequence of the pleaded conduct of all or any of the respondents. Because of this description, the analysis went, if no actionable loss was suffered because the respondents breached no statutory or common law duty, the group would be or would become devoid of members. The same could presumably be said if the respondents succeeded, not because breach was not established, but the breach did not cause loss.
43 The answer, in my opinion, lies in the explanation given by Wilcox J in Nixon v Philip Morris (Australia) Ltd (1999) 165 ALR 515 at 545 when dealing with a similar submission:
"Another Philip Morris complaint arises out of the fact that subpara (c) of the definition of group members in the revised draft refers to people "who commenced, continued, or failed to quit such smoking wholly or partly because of" the respondents' conduct. Counsel say this ingredient in the definition depends upon a subjective matter; it will not be known whether a particular person fulfils the criterion stated in subpara (c) until that person gives evidence. If the person fails to establish the causal link referred to in subpara (c), it will follow the person is not a group member and, therefore, is not bound by the result of the proceeding. The person would be free to bring a later proceeding against the respondents or any of them.
The argument has a superficial charm. But it fails to sustain analysis. The result suggested by counsel is correct. However, the person could not base a later proceeding on either of the causes of action pleaded in this case. Both those causes of action depend upon the person having been influenced to commence or continue smoking, or to fail to quit smoking, by the conduct of one or more of the respondents. If it is held in this proceeding that a particular person was not so influenced, the doctrine of issue estoppel would prevent the person contending to the contrary in a later action. Of course, the person would not be precluded from bringing a later action on a different cause of action, one that did not depend upon establishing a link between a respondent's conduct and the commencement or continuation of smoking; for example, a product liability claim. But it is always true that a group member is free to bring a second action against the same defendant in relation to a different cause of action.
The effect of acceptance of the respondents' submission would be that the representative procedure could never be used in relation to a cause of action whose elements included reliance. A court's determination of reliance always involves assessment of a subjective element: the effect (if any) of particular actions on the mind of a particular person or persons. Given that many of the causes of action provided by the Trade Practices Act involve reliance, this would represent a major limitation on the utility of Pt IVA of the Federal Court of Australia Act."
44 This analysis by Wilcox J was referred to by Sackville J at pars 100 and 101 in the judgment on appeal discussed earlier. However the rejection by Wilcox J of this submission about the identification of the group does not, itself, appear to have given rise to an issue in the appeal. Nonetheless the concluding observations of Sackville J in the passage quoted in par 25 above are consistent with acceptance of its correctness. It is not a large step from accepting that a representative proceedings can properly be brought to decide a substantial common issue of fact or law where ultimate liability might depend, additionally (for example) on proof of reliance and/or damage (see also par 164 of Sackville J's reasons) and accepting that the class may be defined by reference to loss or damage resulting from the conduct said to found liability.
45 While it is unnecessary to express a concluded view at this stage on what might be the effect of orders made if the respondents succeed, either by establishing, for example, no breach of duty or no relevant loss or damage, I would have thought the position was, in principle, no different to that discussed in Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398 by Toohey and Gaudron JJ at 423-424. That is, a person who had not elected to opt out of this proceeding would be estopped in future proceedings in which loss was said to arise from the conduct of the respondents pleaded in this matter, from contending the conduct was in breach of a particular statutory or common law duty if a finding of no breach of that duty is made in this proceeding or from contending relevant loss or damage resulted from that conduct if a finding was made there was none.
46 It has not been demonstrated that the proceeding does not satisfy the procedural requirements of s 33C(1)(a). Several respondents also submitted that the proceeding does not satisfy s 33C(1)(c). It is to be recalled that this provision requires the claims of an applicant and group members give rise to a substantial common issue of law or fact. The common issues identified by the applicant in this proceeding a set out in par 9 above. The applicant accepted that the matters identified in pars (c) and (d) did not concern common questions of law or fact though did not resile from the contention that the matters in pars (a), (b) and (e) did. In support of the submission that there was no commonality it was pointed out that the representations relied upon were by different people or entities and were not the same representations having regard to the way the various sets of representations were pleaded. Similarly the negligence pleaded was founded on these disparate sets of representations.
47 However implicit in this submission is an approach to the requirement in s 33C(1)(c) which is, in my opinion, an unwarrantedly narrow one. As the High Court said in Wong v Silkfield Pty Ltd (supra) at 381:
"Clearly, the purpose of the enactment of Pt VIA was not to narrow access to the new form of representative proceedings beyond that which applied under regimes considered in cases such as Carnie. This suggests that, when used to identify the threshold requirements of s 33C(1), "substantial" does not indicate that which is "large" or "of special significance" or would "have a major impact on the … litigation" but, rather, is directed to issues which are "real or of substance".
The circumstance that proceedings which passed the threshold requirement of s 33C may later be terminated as representative proceedings, by order made under s 33N, confirms rather than denies such a construction of s 33C (1). Further, as Foster J pointed out, the broadening provisions of subs (2) of s 33C emphasise the width of the entitlement conferred by s 33C (1) to commence a representative proceeding."
48 The Court then observed that the only common issue of fact in that matter identified by Foster J concerned a representation made by the respondent during the sale of units to the applicants that "written statements delivered pursuant to s 49 [of the Building Units and Group Titles Act 1980 (Qld)] were accurate".
49 In the present proceeding a not dissimilar contention is made about the accuracy of the Part B statement. It is also a not dissimilar contention to that made in Prudential Assurance Co Ltd v Newman Industries Ltd [1981] 1 Ch 229, referred to in Carnie v Esanda Finance Corporation Ltd (supra), where it was alleged by one shareholder in a representative proceeding brought on behalf of all shareholders (except the defendants) that shareholders had been induced to approve a transaction by means of positive misrepresentation and deliberate concealment of the true facts in a tricky and misleading circular published by the defendants (so described at 233).
50 It is contended in this proceeding that the Part B statement is inaccurate, in the sense that its preparation and contents gave rise to implied representations in it which were misleading or deceptive in a number of respects. The applicant contends the same implied representations were made by all respondents though the facts from which it can be inferred those representations were made varies somewhat between Grant Samuel and other respondents. However approval (express or implied) of the publication of the Part B statement is relied on as against all respondents. The implied representations include (par 28 of the statement of claim for GIO, par 31 for the directors and par 36 for Grant Samuel):
"(a) the valuation of GIO shares contained in the Part B Statement was accurate and reliable;