Kirby v Centro Properties Limited

IN THE MATTER OF CENTRO RETAIL LIMITED BETWEEN: RICHARD KIRBY

REASONS FOR JUDGMENT 1 Presently there are pending three representative actions against the Centro Group. Richard Kirby is the named applicant in two actions, one brought against Centro Properties Limited (CPL) and CPT Manager Limited (CPT Manager) and the other one against Centro Retail Limited (CRL) and Centro MCS Manager Limited (Centro MCS). Maurice Blackburn Pty Ltd is the solicitor on the record. The third action (and the last in point of time) was issued by Nicholas Vlachos, Monatex Pty Ltd and Ramon Franco and has all four Centro companies as respondents. Slater & Gordon are the solicitors for the applicants. The issue for determination is whether all three actions should be permitted to proceed. 2 The Kirby actions and the Vlachos action share the same nucleus of operative facts. The claims that are made, and the causes of action upon which those claims are based, are substantially identical. Securities in CPL, to which are stapled units in the Centro Property Trust of which CPT Manager is the responsible entity, are traded on the ASX. So also are securities in CRL to which are stapled units in the Centro Retail Trust, which has Centro MCS as the responsible entity. The named applicants and the group members whom they represent purchased securities in CPL or CRL. There was a substantial fall in the price of those securities and the losses suffered by the purchasers are alleged to run into the hundreds of millions of dollars. The actions are brought to recover those losses. In brief, the applicants accuse the respondent companies of making misleading statements to the market about their respective financial positions, and also of failing to make the continuous disclosure required of them by the ASX listing rules. This conduct is alleged to have caused the price of the securities in each of CPL and CRL to be inflated. 3 Though substantially the same, there are points of difference between the actions. First of all, the group of investors which Kirby represents is what is commonly referred to as a "closed class". The relevant criterion is that group members must have entered into a funding agreement with IMF Australia Limited (IMF), a litigation funder. The group that is represented in the Vlachos action has no such limiting criterion. Its members include all purchasers of securities in CPL and CRL during a specified period. The second difference between the groups concerns the length of the class period. In each action the group member must have purchased securities in CPL or CRL (as the case may be) during a specified period. The period in the Vlachos action is longer than in the Kirby actions. Finally, there are some minor differences as regards how the causes of action are pleaded. 4 Putting the pleaded claims and classes to one side, there is something else that the actions have in common. Each is an example of a relatively new phenomenon in Australia, namely the lawyer-driven litigation. This is litigation where the lawyer investigates the potential for a claim and recruits the plaintiff and often the group on whose behalf a class action is initiated. Sometimes the person who is named as the plaintiff is simply a figurehead, with little at stake, and who is usually not very well informed about the theories of their case. The most common recruiting method is direct advertisement, often through the lawyer's website on the internet. In Australia it is becoming increasingly common for a litigation funder to cover the costs of the action. 5 There are many critics of entrepreneurial actions. There has been a long-standing concern about lawyers who solicit business and stir up litigation. In reality, though, solicitation is not improper per se, and it may be a good thing that lawyers find clients who would not otherwise have sought redress (or even realised that redress was available) for the wrongs they have suffered. The acceptance of class actions has, I think, made this inevitable. 6 Of more serious concern is the risk that the entrepreneurial lawyer is not subjected to adequate monitoring by the named plaintiff (their client) and largely operates according to their own self-interest, subject only to the restrictions imposed by the ethical rules that govern the profession, some judicial oversight and their own sense of ethics and fiduciary responsibilities. 7 These and other concerns about class actions in the securities area led to the passage in the United States of the Private Securities Litigation Reform Act 1995, codified as amended in scattered sections of 15 USC and relevantly for present purposes at 15 USC s 78u-4 - 78u-5 (PSLRA). The PSLRA requires the court to appoint a lead plaintiff (who usually is a large institutional investor with greater sophistication and resources to devote to the action than the figurehead plaintiff) to oversee the conduct of every securities fraud class action. The lead plaintiff has power to select lead counsel and negotiate counsel's fee. In short, the lead plaintiff provision vests oversight of the class action in a litigant with a substantial stake in the outcome. It is designed to ensure that the action is adequately monitored and that any settlement is in the interests of the investors rather than the lawyers. For instance, it may be in the long-term interest of investors to take a reduced settlement so that the defendant company might survive. The lawyer or litigation funder might not see it that way. 8 While there are problems with securities class actions, it must, I think, be accepted that they serve a useful function. It is often said that these actions promote investor confidence in the integrity of the securities market. They enable investors to recover past losses caused by the wrongful conduct of companies and deter future securities laws violations. According to the United States Supreme Court, they provide "a most effective weapon in enforcement" of the securities laws and are a "necessary supplement to [Securities Exchange] Commission action.": Bateman Eichler, Hill Richards Inc v Berner 472 US 299, 310 (1985), quoting J I Case Co v Borack 377 US 426, 432 (1964). 9 When, as here, multiple class actions are brought, something must be done. It goes without saying that it is undesirable that multiple actions raising the same or similar issues be tried separately, perhaps before different judges. For one thing, it is undesirable that common issues should be separately litigated since the decisions could be inconsistent. For another, there are obvious efficiencies (both as regards court time and parties' costs) in having common questions resolved at one time. There is no legislation in Australia that establishes procedures for handling multiple class actions. The court's powers are confined to the rules applicable to ordinary civil litigation plus the power in s 33ZF(1) of the Federal Court of Australia Act 1976 (Cth) to "make any order the Court thinks appropriate or necessary to ensure that justice is done in [a group] proceeding." 10 In ordinary civil litigation there are several ways in which a court deals with multiple actions raising the same or similar issues. The court can single out one of several actions for trial and stay proceedings in the others until that one has been tried. This usually requires the party applying for the stay to undertake to abide the result of the action that is allowed to proceed: The Strathgarry [1895] P 264; Cameron v McBain [1948] VLR 245, 246-247. In effect the action becomes a test case. Another possibility is to consolidate the actions - that is, combine them so that they can proceed as one action. This procedure can be quite cumbersome. There is a special difficulty where the plaintiffs have separate representation. There is a rule of practice that, without leave, separate representation is not permitted on the plaintiff's side. In Lewis v Daily Telegraph Limited (No 2) [1964] 2 QB 601, Pearson LJ explained the problems that can arise. He said (at 620-21): How would the opening speech (or speeches) be made? Would it be right that the plaintiffs should have as against the defendants the advantage of two opening speeches instead of one? Then, in the conduct of the case, if there were two plaintiffs separately represented, would each plaintiff be allowed to cross-examine the other plaintiff's witnesses and have the advantage of being able … to put leading questions to a witness who would be substantially on the same side? Again, when the defendants' witnesses were called, would it be right that both plaintiffs, separately represented, should be allowed to cross-examine those witnesses? The same problem would arise in respect of the final speeches at the end of the case. Would separately represented plaintiffs be allowed to have two speeches? 11 It is true that separate representation is sometimes allowed. For example, it was allowed in Johnson Tiles Pty Ltd v Esso Australia Limited (1999) 56 ATPR 41-679 at [70], but only on the basis that the solicitors agreed jointly to engage one set of counsel to represent the named plaintiffs. But if there is a falling out between separately represented co-plaintiffs, one would have to be removed as plaintiff and added as a defendant: Holden v Silkstone and Dodworth Coal & Iron Co Ltd (1881) 45 TLR (NS) 531. 12 The third method of dealing with multiple proceedings is to order a joint trial. In a joint trial, separate representation is permissible. The advantage of a joint trial is that it avoids the possibility of inconsistent findings. On the other hand, it does not avoid separate pleadings, separate discovery and separate interlocutory applications of one kind or another. So the saving in costs may not be great. Nonetheless, there is a degree of flexibility maintained with an order for a joint trial. If a joint trial becomes an embarrassment (for instance, if there is disagreement among the lawyers), the trial can be split: Horwood v Statesman Publishing Co (1929) 98 LJKB (NS) 450. 13 It is difficult to decide what to do with the Kirby and Vlachos actions. Obviously it is undesirable that the issues they raise should be litigated twice over. If that occurs it would reflect badly on the whole system of administration of justice. That, however, merely states the problem; it gives no clue to the solution. 14 A convenient place to begin seeking out the solution is with the position taken by the parties. The multiple proceeding problem was first raised by Maurice Blackburn. The Kirby actions had been filed on 9 May 2008, being a Friday. At that time Maurice Blackburn knew, or it very soon discovered, that Slater & Gordon were planning to issue their own class action (which was ultimately filed on 23 May 2008). On Tuesday, 13 May 2008, Maurice Blackburn advised Slater & Gordon that IMF would fund Slater & Gordon's clients if they agreed to join the Kirby actions. The offer was subject to a condition: Slater & Gordon would be required to undertake not to encourage Kirby action group members to opt out of the actions. There was some discussion about the proposal, but nothing came of it. 15 Freehills (who, it will be remembered, act for CPL and CPT Manager) broached the multiple proceeding issue on 9 July 2008 in a letter written to all the other parties. In their letter Freehills suggested that there were two options to choose between: either the Kirby actions or the Vlachos action be stayed pending the determination of the other action. Freehills did not suggest that their clients would be bound by any findings made in the action that was to go to trial. 16 Possibly Freehills was under the impression that if that action went against their clients they would be free to re-litigate the issues in the other action. If so, they may have been mistaken. For example, in England in Hunter v Chief Constable of the West Midlands Police [1982] AC 529, the case involving the so-called "Birmingham 6", the House of Lords held that it was contrary to public policy and an abuse of process for a person to challenge in civil proceedings a decision which had gone against that person in a criminal case against which he had not appealed. Hunter and his co-accused had been convicted, wrongly as it turned out, of murder. They alleged at the trial that the confessions upon which their convictions were based were made as a result of threats and violence. The judge (wrongly as history shows) found that did not happen. The jury in any event convicted them. Subsequently Hunter sued the police officers for assault. His claim was struck out as an impermissible collateral attack on the findings made at the criminal trial. In Arthur J S Hall & Co v Simons [2002] 1 AC 615, the House of Lords said that ordinarily the principles of res judicata and issue estoppel would be adequate to cover collateral challenges to civil decisions. But they said the Hunter abuse of process principle could be relied upon if necessary. It is not clear whether the Hunter principle will be applied in full in Australia: compare Rogers v The Queen (1994) 181 CLR 251 with D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1. But it is unlikely that any court would permit a party to relitigate a question or issue which has already been decided against him even though the other side cannot strictly satisfy the requirements of res judicata or issue estoppel. 17 In the United States in Parklane Hosiery Co Inc v Shore 439 US 322 (1979), which was itself a class action case, the US Supreme Court held that the court has broad discretion to allow offensive, "non-mutual collateral estoppel" - that is, a plaintiff in a later action may, where it would promote judicial economy, consistency of result and would not otherwise be unfair, invoke issue estoppel against a defendant such as Centro to bar relitigation of an issue even if the plaintiff was not joined in the earlier action or in privity with a party to that action: Parklane at 329-31; see also V Morabito, "Defendant Class Actions and the Right to Opt Out: Lessons for Canada from the United States" (2004) 14 Duke J of Comp & Intl L 197, 228 (collecting the US and Canadian authorities on "non-mutual collateral estoppel" or inherent jurisdiction to bar re-litigation of issues especially as applied in class actions). 18 Moreover, even if the principle identified in Parklane is not a part of the general doctrine of issue estoppel in Australia, I would certainly consider adopting it at least in the limited context of class actions, either pursuant to the Court's authority under s 33ZF(1) of the Federal Court Act or possibly under the Court's inherent jurisdiction to prevent an abuse of process. With respect to the latter, see Saffron v Commissioner of Taxation (1991) 30 FCR 578, 583 (Davies J), 588 (Lockhart J) and 599 (Beaumont J), where the Full Court suggested that while the Parklane principle was not a part of issue estoppel jurisprudence under Anglo-Australian law, it appeared to perform the same function and yield the same result as would obtain under the Australian abuse of process doctrine. 19 But I digress. Returning to the chronology of events, each of Maurice Blackburn and Slater & Gordon responded to Freehills by letter dated 21 July 2008. In its letter Maurice Blackburn stated that it did not propose to comment on whether the Vlachos action should be stayed. On the other hand, it did provide detailed reasons why the Kirby actions should not be stayed. Slater & Gordon's response was that none of the actions should be stayed. Its reasons referred to the differences in the pleadings and that the group members in the various actions did not overlap. 20 Following this exchange, there were discussions between Maurice Blackburn and Freehills concerning what should be done. What was said has not been disclosed. But, presumably as a result of the discussions, late on 8 August 2008 Freehills sent a facsimile to Maurice Blackburn advising that their clients would apply for a stay of the Vlachos action if the Kirby actions were expanded to include the Vlachos group members and the applications and statements of claim were amended to incorporate the allegations that were peculiar to the Vlachos action. 21 Maurice Blackburn replied by facsimile sent on the same day. By this time, Maurice Blackburn changed its approach. It advised Freehills that now their client, Mr Kirby, was "concerned that the existence of the Vlachos proceeding will result in delays, extra expenses and inefficiencies in the resolution of his proceedings". Accordingly it supported a stay of the Vlachos action. As regards Freehills' proposal, Maurice Blackburn advised that if the Vlachos action were stayed Mr Kirby would amend the group definition in the Kirby actions to create an "open class" so that Vlachos group members who were not clients of IMF would become members of the Kirby group free of any obligation to pay commission to IMF. Maurice Blackburn indicated that while it was reluctant to amend the applications and statements of claim to mirror the Vlachos pleadings it would do so if the amendments were dispositive of the stay application. 22 Maurice Blackburn's change of position cannot pass without comment. Mr Murphy is the chairman of Maurice Blackburn. He has considerable experience in the conduct of class actions. To date, he has been involved in at least twenty-eight, seven of which are securities fraud class actions. Many of the actions have settled. Those that involved open classes were difficult to settle. In an affidavit, Mr Murphy explained that the difficulty was the result of the uncertainty about the overall quantum of the claims made in the proceeding. He said a respondent requires certainty and finality in the settlement of a class action and in securities fraud class actions is not prepared to offer a settlement sum based around a dollar amount per share when the respondent does not know how many shares were alleged to be affected by the allegedly contravening conduct. And, Mr Murphy explained, if the plaintiff is unable to estimate with a reasonable degree of accuracy the claims of group members it is difficult for him and his lawyers to be persuaded that an offer of a fixed settlement sum for the whole class is fair, reasonable and adequate and capable of founding an application for its approval. 23 I am prepared to assume that what Mr Murphy said is correct. That, however, makes it difficult to understand Maurice Blackburn's current stance. So far as the evidence presently stands it appears that Maurice Blackburn has gone along with Freehills' proposal notwithstanding that it may affect adversely Mr Kirby and the group he represents in terms of making the proceedings more difficult to settle. If there is a benefit to Mr Kirby's group, it is not immediately apparent. 24 On the other hand, the proposal will benefit Maurice Blackburn and IMF. They are operating in a competitive market, in the case of Maurice Blackburn for the provision of legal services, and in the case of IMF for the provision of litigation funding. Keeping a competitor at bay by limiting his opportunities is a very desirable outcome. This, I think, has the potential to put Maurice Blackburn in an unenviable position; one where there is a risk that its personal interest might end up in conflict with its duty to its clients. True it is that Maurice Blackburn received instructions from Mr Kirby to accept Freehills' proposal. But that may not be good enough. For one thing, there appears to have been no time for Mr Kirby to obtain independent legal advice. For another, I am not convinced that Mr Kirby's instructions to proceed are an adequate proxy for the wishes of the remaining group members (who number 955). In the circumstances, then, I cannot be sure of either Mr Kirby's or the remaining group members' wishes - possibly they might be dismayed to discover what is occurring. 25 At any rate, following the arrangement between Freehills and Maurice Blackburn, the respondents, with the active support of Mr Kirby, sought a stay of the Vlachos action. The respondents found their application on s 33ZF asserting that a stay order will ensure that "justice is done". In the alternative they rely on s 33N(1)(c) pursuant to which the court may make a "declassing" order if "a representative proceeding will not provide an efficient and effective means of dealing with the claims of group members." 26 It is convenient to deal first with the application under s 33ZF. The section gives the court generous power to ensure that class actions are run fairly and expeditiously. In Courtney v Medtel Pty Ltd (2002) 122 FCR 168, Sackville J observed (at [48]) that one of the reasons for the section was that the new procedures for representative proceedings would likely throw up novel problems that would require close supervision by the court. I agree. The power the section confers, while not unlimited, is certainly wide enough to permit the court to regulate how multiple class actions should be conducted. 27 Viewed from the perspective of the respondents, a stay of one action makes sense. But which action should be stayed? Making the choice is fraught with difficulty. This is especially true when, as with these proceedings, each plaintiff wants his action to go ahead as do their respective lawyers and litigation funders. 28 There is less difficulty in determining what factors should not be taken into account. For example, I propose to ignore altogether the interests of the lawyers and litigation funders. In addition, I intend to give no weight to the fact that Mr Kirby and the respondents have decided that it is the Vlachos actions that should be stayed and have acted in combination to achieve that result. Indeed, on further reflection, I am convinced I was in error in allowing counsel for Mr Kirby to make submissions in support of the respondents' application, albeit he was heard without objection. 29 I propose also to leave out of account the fact that the Kirby actions were commenced first in point of time. It would I think, be very dangerous to adopt a first-past-the-post rule. It will, particularly in class actions, lead to a race to the courthouse with hastily drafted pleadings containing poorly supported allegations, possibly even incentivizing law firms to engage in inappropriate conduct in order to be the first to recruit a suitable plaintiff. I intend not to encourage those kinds of actions which foster poor lawyering and may easily have a blackmail effect and force innocent companies to settle. 30 The factors that are relevant and should be taken into account present a bleak picture. As noted earlier, I confess to be concerned about the interests of the group members represented by Mr Kirby. Group members who are not named plaintiffs usually have no say in the running of their action. Indeed, even the named plaintiff, if he or she has been recruited by the lawyers, is unlikely to be an effective superintendent of their action. This is hardly surprising when one remembers that the cost of monitoring the lawyers will often exceed the benefit the named plaintiff will recover in the action. The reality is that in many class actions, especially securities class actions, the represented group as a whole has a much greater interest in the litigation than the individual person representing the group. The decision that I am asked to make will likely have such an impact on group members in each action that I am reluctant to make it without knowing their views. 31 Section 33ZF could be used for that purpose. For instance an order could be made appointing a litigation committee to oversee each action. A litigation committee could, for example, decide issues such as whether it is in the represented group's interest to open the class. To be blunt (and at the risk of repetition), I am reluctant to acquiesce in a proposal that may prejudice the represented groups' interest without their input. 32 Another problem with acceding to the respondents' application is that, in a practical sense, it amounts to a choice between which lawyers and litigation funders should run the litigation and, as a consequence, obtain the not inconsiderable benefit that will result from a successful action. I would be far better placed to make that choice if I had the following information about the lawyers: (1) the experience of the firm in securities class action litigation, together with the background and experience of the particular lawyers in the firm who will be assigned to the case; (2) a statement of the dollar amount of the costs the firm expects to charge for all work performed, such statement to be provided for the following three stages: (a) for pleadings through to discovery and pre-trial motions (including separate questions); (b) from completion of pre-trial motions through to verdict at trial; and (c) from trial verdict to final appellate determination; (3) a statement of the terms of funding for the class action, including the commission rates charged; and (4) a statement of the amount to be paid as fair compensation to the lawyers whose action does not proceed in compensation for their work to date in identifying and developing their clients' claims. 33 Last but not least I would be much assisted by the views of the group members more broadly, not just those of the hand-picked applicants. After all, I am being asked to choose the lawyers who will run the claims of the whole class. An independently-selected litigation committee is the best vehicle to provide the groups' views. 34 I appreciate that this approach has the hallmarks of an auction process, but with lawyer-driven class actions, there is no good reason why the case should not be auctioned. A workable procedure is to use a standard sealed-bid protocol. Any firm, including those who act in parallel proceedings, could lodge a bid. The successful bidder could be chosen by the judge, by a litigation committee appointed for that purpose, or (and this is my preference) by the judge who has the opinion of a litigation committee. For examples of sealed bid auctions, see In Re Lucent Technologies Securities Litigation 221 FSupp2d 472 (DNJ 2001), a securities fraud class action; see also In re Auction Houses Antitrust Litigation 197 FRD 71 (SDNY 2000); In re Amino Acid Lysine Antitrust Litigation 918 FSupp 1190 (NDIll 1996); In re Wells Fargo Securities Litigation 156 FRD 223 (NDCal 1994); In re Oracle Securities Litigation 131 FRD 688 (NDCal 1990). 35 Interestingly, it is worth noting with respect to auctions that in the United States a recent bill proposes that 15 USC s 78u-4(a)(3)(B)(v) be amended by adding: "In exercising the discretion of the court over the approval of lead counsel, the court shall employ a competitive bidding process as one of the criteria in the selection and retention of counsel for the most adequate plaintiff, unless the court determines on the record that such a process is not feasible." Securities Litigation Attorney Accountability and Transparency Act, Senate Bill 3033, 110th Congress s 3 (2008); Securities Litigation Attorney Accountability and Transparency Act, House Bill 5463, 110th Congress s 4 (2008). As at 19 May 2008, this bill had been introduced in the House of Representatives, referred to the House Subcommittee on Capital Markets, Insurance and Government Sponsored Enterprises, read twice in the Senate, and referred to the Senate Committee on Banking, Housing and Urban Affairs. 36 In the end, the only basis of any substance put forward by the respondents (and strongly urged by counsel for Maurice Blackburn) for choosing Mr Kirby's actions as the vehicle to take the claims to court is the assertion that Maurice Blackburn has put together the greater collection of group members, regardless of whether calculated by number or size of financial stake. That calls for two comments. First of all, it is impossible to know whether the assertion is correct. As noted earlier, Maurice Blackburn has a closed group whose members number 955. In the Vlachos action, the group is open and there may be several thousand members. Secondly, even if the assertion is correct, I fail to see why this is an indication that it is in the interests of both groups for a particular action to proceed. Maurice Blackburn may have the larger group simply because its marketing began first or because it has more enticing advertisements. 37 In my opinion, the only important factor in determining which of several actions should proceed is the best interests of the group members. For reasons I have explained, at this moment it is not possible to determine where their best interests lie. That may, however, change. Section 33ZF permits me to act on my own motion to ensure that "justice is done". I have in mind giving directions to establish a litigation committee to consider what should occur. Subject to what the parties have to say, what I think should be done is that notice be given to group members in each action telling them that it is proposed to establish a litigation committee to oversee each action. The notice, which may be given by letter, will: (1) give details about the case; (2) inform group members why a committee is being set up; and (3) invite interested persons to nominate themselves or other group members for membership with reasons why their nomination should be accepted (eg size of financial interest, ability or experience in monitoring solicitors etc). The response should be returned to the Court with a copy to the applicants' lawyers. The Registrar in conjunction with the applicants' lawyers can then finalise the membership of the committee. 38 Returning to the application at hand, I can put to one side the respondents' reliance on s 33N(1)(c). It is, I think, misplaced. If made, a declassing order will not stop the Vlachos action from going ahead. What the respondents probably have in mind (but will not say so) is that if a declassing order is made the litigation funder will likely not continue with its funding and their action will fall away. That is not a reason to make an order. To the contrary, it is a reason for refusing the order. 39 If nothing comes of my suggestion to form a litigation committee, I must do something also to reduce the cost of maintaining multiple actions. The most significant pre-trial cost in securities class actions is the cost incurred in discovery. I am sure that Maurice Blackburn and Slater & Gordon can work out a protocol that would substantially avoid duplication of effort in obtaining and analysing document discovery. I have seen a proposal for this to occur that has been put forward by Slater & Gordon. The response by Maurice Blackburn has been that the proposal is untenable. I am not convinced they mean this. I know well enough senior lawyers in both Maurice Blackburn and Slater & Gordon and I am quite sure they can work together and establish a regime for their respective staff to work together. They have already done so in large class actions and can do so again. If it proves necessary to reach agreement on a protocol and the parties are unable to do it on their own, I will assign a Registrar to help them. The several actions will then proceed until the inevitable mediation. If at that time the actions are not compromised I will determine whether one only should proceed as a test case. 40 I want to make it abundantly clear that, by one means or another (and the means may include making appropriate orders), I intend to ensure that the costs of these actions, especially the cost of discovery, be kept down. In the case of discovery costs, they should not exceed what they would be if only one action went forward. Nor will I approve any other costs that reflect duplication or inefficiency or otherwise could have been avoided if the two firms had co-ordinated their efforts. 41 In light of the foregoing I will dismiss the stay application. I grant leave to the parties to file within 21 days written submissions on whether and, if so how, a litigation committee should be appointed and what powers should be given to that committee. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.

Associate: Dated: 10 October 2008 Counsel for the Applicants in VID 326 and 327 of 2008: N Hutley SC MBJ Lee

Solicitor for the Applicants in VID 326 and 327 of 2008: Maurice Blackburn

Counsel for the Respondents in VID 326 of 2008: J Beach QC M Garner

Solicitor for the Respondents in VID 326 of 2008: Freehills

Counsel for the Respondents in VID 327 of 2008: P Jopling QC P Wallis

Solicitor for the Respondents in VID 327 of 2008: Middletons

Counsel for the Applicants in VID 366 of 2008: J Burnside QC L Armstrong

Solicitor for the Applicants in VID 366 of 2008: Slater & Gordon

Counsel for the First and Second Respondents in VID 366 of 2008: J Beach QC M Garner

Solicitor for the First and Second Respondents in VID 366 of 2008: Freehills

Counsel for the Third and Fourth Respondents in VID 366 of 2008: P Jopling QC P Wallis

Solicitor for the Third and Fourth Respondents in VID 366 of 2008: Middletons