4 I refer to ss 5(1), (3) and (4) of the TPA (noting the analogous new counterpart provisions in s 5 of the Competition and Consumer Act) which, by s 5(1)(c) of the Competition and Consumer Act, applies to the Australian Consumer Law (other than Part 5 3)).

5 Sections 5(1), (3) and (4) of the TPA provided:

Extended application of Parts IV, IVA, V, VB and VC

1. (1) Part IV, Part IVA, Part V (other than Division 1AA), Part VB and Part VC extend to the engaging in conduct outside Australia by bodies corporate incorporated or carrying on business within Australia or by Australian citizens or persons ordinarily resident within Australia.

...

(3) Where a claim under section 82 is made in a proceeding, a person is not entitled to rely at a hearing in respect of that proceeding on conduct to which a provision of this Act extends by virtue of subsection (1) or (2) of this section except with the consent in writing of the Minister.

(4) A person other than the Minister or the Commission is not entitled to make an application to the Court for an order under section 87(1) or (1A) in a proceeding in respect of conduct to which a provision of this Act extends by virtue of subsection (1) or (2) of this section except with the consent in writing of the Minister.

6 The application for leave by the plaintiffs is driven by the acknowledged absence of ministerial consent at the time of commencement of the proceedings, as required for relief under s 87 of the TPA by reference to any alleged Part V TPA conduct engaged in outside Australia.

7 The leave application is only concerned with the ramifications of noncompliance that arise out of the effect of s 5(4) of the TPA. Nevertheless, I have also set out s 5(3) which addresses a differing scenario for TPA claims advanced by reference to less expansive relief under s 82 of the TPA. I seek to highlight the differences between the structures of the two distinct ministerial consent provisions.

8 The applicable legislative inhibition under s 5(3) (for s 82 TPA relief) is imposed against reliance at 'a hearing' of conduct of the relevant kind (ie alleged Pt V infringing conduct outside Australia engaged in by bodies corporate who are incorporated or who carry on business within Australia). The formulation of s 5(3) of the TPA is a less prescriptive provision than s 5(4). The latter provision distinctly inhibits the entitlement to 'make an application to the Court' where relief under s 87 of the TPA is pursued by reference to conduct engaged in outside Australia.

9 Section 5(4) of the TPA is more widely framed as a constraint because of the intrusive array of possible remedies that may be obtained, including orders in the nature of mandatory injunctive relief, negative restraints, orders voiding (ab initio or otherwise) provisions in contracts or, if appropriate, even rewriting contractual arrangements as a court should think fit: see s 87(2) of the TPA. That flexible armoury of potential relief available under s 87 of the TPA, in contrast to the more confined monetary orders measured for proven loss and damage under s 82(1) of the TPA, carries considerations bearing on international relationships between nations arising out of the extended operation of the TPA to conduct that has been engaged in outside Australia. Hence, the more extensive constraint requiring ministerial consent before proceedings are even commenced. However, I do note that the requirement for ministerial consent is not applicable where merely statutory injunctive relief, grounded by reference to s 80 of the TPA, is sought.

Tritec case: Principles relating to s 5(4) of the TPA

10 In Tritec Technology Pty Ltd v Gordon [2000] FCA 75, Finkelstein J rendered these observations concerning ss 5(3) and (4) of the TPA. As regards s 5(3), his Honour said:

In a case where a party proposes to make a claim under s 82 in respect of conduct engaged in outside Australia, s 5(3) prevents that party from relying on that conduct at a hearing except with the consent of the Minister. It may be that the hearing to which s 5(3) refers includes an interlocutory hearing: see Yamaji v Westpac Banking Corp [1993] FCA 273; (1993) 42 FCR 436 at 440 [35].

11 At [36], Finkelstein J expressed the view that s 5(3) did not deny a claimant the right to pursue relief by reference to overseas conduct that is grounded upon nonTPA based causes of action, notwithstanding the literal reading of s 5(3).

12 Finkelstein J then addressed s 5(4):

Section 5(4) does not deal with reliance on conduct at a hearing. It is concerned with the institution of an application: I take the phrase 'make an application' to mean 'institute an application'. A difficult question arises in the case of an application for an order under s 87 that is instituted in the absence of ministerial consent. Is the failure to obtain that consent a mere defect or irregularity which can be cured by later obtaining that consent? Or is the requirement mandatory so that a proceeding commenced in defiance of the prohibition is one that can be described as a nullity or, perhaps more accurately, as a proceeding upon which no order might be made? Emanuele v Australian Securities Commission [1997] HCA 20; (1997) 188 CLR 114 is an instance of a case where a similar issue arose. There the question was whether a proceeding that could only be made by leave of the court was defective in the absence of that leave or whether leave could be obtained nunc pro tunc. The High Court decided by a majority of 3:2 that the proceeding was not a nullity and that leave could be subsequently obtained: see also Posner v Collector for Interstate Destitute Persons (Vic) [1946] HCA 50; (1946) 74 CLR 461 [37].

13 Finkelstein J was ultimately satisfied that there was no jurisdictional bar. Unlike the facts underlying the present case, Finkelstein J in Tritec observed that the applicants in that case had only raised reliance upon s 52 and s 82 of the TPA and that the application was supported by s 23 of the Federal Court of Australia Act 1976 (Cth). As there was another viable source of power for the Federal Court to grant declaratory relief obviating the need for consent, his Honour observed that, insofar as declaratory relief was sought, such a claim may be pursued even without s 87 of the TPA.

14 Here, the writ of summons of 1 September 2010 carried an indorsement of claim (see Rules of the Supreme Court 1971 (WA), O 6 r 1(1)) rather than a pleading. A diverse array of relief is mentioned in the indorsement, including declaratory relief as to the true construction of a written instrument (referred to as the Subscription Agreement) between the first plaintiff and the second defendant on or about 15 July 2006 and as subsequently amended prior to 18 August 2006. A declaration was also sought of the existence of an asserted implied term in the Subscription Agreement, further or alternatively in another instrument referred to as the Note Deed Poll. In the alternative, orders were sought for rectification of the Subscription Agreement against the first and second defendants, or alternatively the Note Deed Poll.

15 Injunctive relief was sought against the first defendant on what appears to be a nonstatutory basis (par 4 of the prayer for relief). In addition, orders were sought for rectification against the first and second defendants as well as common law damages for asserted breaches of representations and warranties within the Subscription Agreement (par 5 of the prayer for relief).

16 Beyond common law and equitable relief, it is apparent that the plaintiffs sought damages pursuant to s 82 and compensation orders pursuant to s 87 of the TPA. Further or alternatively, injunctive relief was sought under s 80 or under s 87 of the TPA for the issuing of notes pursuant to the Note Deed Poll in an aggregate total amount exceeding US$100 million (par 6 of the prayer for relief in the original indorsement). The relief under the TPA was sought on the basis of asserted misleading and deceptive conduct by the first and second defendants in trade and commerce prior to execution of the Subscription Agreement (of 15 July 2006).

17 The indorsement also pursued equivalent statutory relief in the alternative under the Fair Trading Act 1987 (WA) seeking damages or statutory compensation, injunctive relief or injunctive orders (par 7). Analogous statutory relief was sought (again in the alternative) for damages or an injunction grounded upon s 12GF or s 12GD of the ASIC Act against the first and second defendants for alleged misleading and deceptive conduct. Like relief was also sought by reference to s 1041I, s 1041H(1) and s 1324 of the Corporations Act, again based on alleged misleading and deceptive conduct. Finally, relief was sought against the third defendant, Mr Forrest, under s 82 of the TPA for damages or compensation under s 87 of the TPA on the basis of what appears to be his accessorial liability in the alleged misleading and deceptive conduct of the first and second defendants.

18 There is nothing discernible from the face of the writ and its indorsement to indicate that the plaintiffs are raising or relying upon conduct allegedly engaged in by any of the defendants outside Australia. The overseas addresses of the first and second plaintiffs seen on page 9 of the writ, showing them to be corporations whose addresses are respectively in the States of New York and Utah in the United States of America, are not enough on their own for that inference to be drawn.

19 So there was nothing on the face of the writ of summons of 1 September 2010 to suggest that a requirement for the prior consent of the Minister under s 5(4) of the TPA was relevantly applicable to the relief sought under s 87 of the TPA.

20 That situation altered on 22 October 2010, when the plaintiffs filed their first statement of claim: see O 6 r 3, O 20 r 1 and O 20 r 2(2) and r 2(3) of the RSC. Multiple paragraphs of the statement of claim contain references to alleged material facts which ground part of the plaintiffs' case for alleged misleading and deceptive conduct on conduct that took place in the United States of America. By way of illustration, see pars 6(3) (New York), 7 (New York), 32(7), 56, 58 and 60. The prayer for relief in the statement of claim, insofar as it contains references to relief sought under s 87 of the TPA for alleged misleading and deceptive conduct of the first and second defendants, is to be read as pursued by reason of at least some asserted conduct that is said to have taken place outside Australia, within the United States of America.

21 Insofar as relief is sought by reference to Pt V and s 82 of the TPA, the absence of a ministerial consent does not bear upon the overall validity of the commencement of the action. The absence of a consent under s 5(3) of the TPA will only present a potential obstacle as a required prerequisite in the face of a looming court hearing. There is no suggestion before me of any relevant difficulty concerning reliance upon overseas conduct.

22 However, a problem under s 87 of the TPA and its more onerous ministerial consent requirement as set under s 5(4) expressed as being applicable prior to the making of an 'application' (terminology assessed by Finkelstein J in Tritec as meaning the institution of proceedings) manifested from 22 October 2010 with the pleaded statement of claim, given that no ministerial consent had been obtained prior to the commencement of proceedings on 1 September 2010.

23 To round out this recitation of the progression of the action to date, I note that the plaintiffs filed an amended writ of summons on 11 November 2010, under the leave I granted on 10 November 2010 at a directions hearing. The amended indorsement to the writ of summons (par 2A) raised the plaintiffs' further claim seeking a declaration or order that the first defendant was estopped from issuing notes under the Note Deed Poll.

24 There was a further amendment to the writ, again by my leave pursuant to orders of 19 May 2011, which raised an alternative claim for compensation pursuant to s 12GM of the ASIC Act, in the alternative to the subsisting claim for damages under s 12GF.

Ministerial consents subsequently obtained (June 2011) by the plaintiffs

25 The first and second plaintiffs obtained ministerial consent pursuant to s 5(4) of the TPA on 14 June 2011. At the same time, consent was also obtained pursuant to s 5(3) for relief claimed under s 82 of the TPA.

26 On 16 June 2011, ministerial approval from the relevant Minister was obtained pursuant to s 12AC(2) and s 12AC(3) of the ASIC Act under legislative provisions that are broadly analogous to these under the TPA.

27 I schedule to these reasons the four consents obtained from the two relevant Ministers on 14 and 16 June 2011, respectively. The date 16 June 2011 carries significance to the leave that is now sought by the plaintiffs' present application.

28 On 27 July 2011, the plaintiffs brought their application for leave to commence and continue applications for orders under s 87 of the TPA and s 12GM of the ASIC Act. Under that application, they sought:

Pursuant to the inherent jurisdiction of this Honourable Court, the Plaintiffs be granted leave, nunc pro tunc, to commence and continue applications to this Honourable Court for orders under:

(a) section 87 of the Trade Practices Act 1974; and

(b) section 12GM of the Australian Securities and Investments Commission Act 2001.

29 Although originally framed as an application seeking leave nunc pro tunc (that is, back to the time of commencement of proceedings by the writ of summons filed on 1 September 2010): see observations of Toohey J in Emanuele v Australian Securities Commission [1997] HCA 20; (1997) 188 CLR 114, 131 132, the plaintiffs did not in the end pursue leave nunc pro tunc, visàvis s 87 of the TPA and s 12GM of the ASIC Act. Rather, under a minute of proposed orders of 22 September 2011, the plaintiffs only seek:

1. The Plaintiffs have leave to include the applications for orders pursuant to:

(a) section 87 of the Trade Practices Act 1974 (TPA); and

(b) section 12GM of the Australian Securities and Investments Commission Act 2001 (ASIC Act) as set out in the Further Amended Writ of Summons dated 19 May 2011 (Writ of Summons), such leave to be effective from 17 June 2011.

1. The plaintiffs' applications for orders pursuant to:

(a) section 87 of the TPA; and

(b) section 12GM of the ASIC Act,

as set out in the Writ of Summons and Statement of Claim dated 22 October 2010 (Statement of Claim) shall take effect as if leave had been granted on 17 June 2011.

30 Hence, the plaintiffs no longer seek leave antedated to 1 September 2010. The leave now sought is proposed to be backdated to be effective from 17 June 2011, that is, the day after the last of the four consents provided by the two relevant Ministers.

31 I assess the leave now sought to be in the court's inherent jurisdiction to, in effect, amend the writ as from 17 June 2007 to add the s 87 of the TPA and the s 12GM of the ASIC Act claims on the basis that such statutory claims be assessed from 17 June 2011, in effect, as not subsisting in the action, but as statutory claims which are consolidated in the action with all the other relief that was properly sought beforehand.

32 Relevantly, the question posed in Tritec by Finkelstein J at [37] is enlivened on the facts before me, namely, '[i]s the failure to obtain that consent a mere defect or irregularity which can be cured by later obtaining that consent?'. I am satisfied that this court's inherent jurisdiction to control its procedures provides it with the power to make an order of this character.

33 On the application, senior counsel for the plaintiffs first contended that there was jurisdiction and that it was appropriate for the court to grant leave as sought, effective from a day after the relevant ministerial consents had been obtained. It was contended by the plaintiffs that:

(a) there were no limitation of action issues arising between the parties which can be affected by the a grant of leave as sought;

(b) leave would obviate unnecessary, wasteful expense and delays arising from requiring the plaintiffs to discontinue the s 87 aspects of the present action (on foot for over 12 months) in circumstances where there are significant nonsection 87 components to the litigation which were regularly commenced; and

(c) the plaintiffs might otherwise have to file fresh proceedings seeking the very same s 87 relief (on the basis of mutual consents now obtained), effect service, then seek to consolidate the fresh action with the untainted and viable remnants of the existing action - all this effectively for the plaintiffs to return to square one.

34 There was no affirmative opposition from the defendants to the application for the grant of leave as sought. Senior counsel for the defendants in way of proper assistance to the court did however raise two matters of potential concern bearing against a grant of leave as sought. First, in relation to the court's jurisdiction to grant leave, he drew my attention to the more onerous and precommencement nature of the ministerial consent that is required under s 5(4) of the TPA assessed visàvis s 5(3) (mutatis mutandis for the ASIC Act as regards s 12AC(2) and s 12AC(3)) and to an unanswered observation of Finkelstein J in Tritec concerning validity where s 5(4) is transgressed.

35 Second, my attention was drawn to the nature of the respective consents provided by the Ministers. As regards s 5(4) of the TPA, it was observed that the consent provided might be read as being inappropriately drawn (the consent being framed by the regime for the consent required for the purposes of s 5(3) of the TPA, not for s 5(4)). The overseas extension of the TPA to Pt V conduct engaged in outside Australia is effected, as a matter of the proper construction, by s 5(1) of the TPA and not by the consent in s 5(4) of the TPA.

36 I am grateful for the assistance I have received from senior counsel on these points. As to the second point, I am satisfied that it does not present as a real difficulty. Ms Macknay's affidavit of 15 July 2011 attaches copies of the four relevant ministerial consents (which I have scheduled to these reasons). For the TPA, these were provided by the Parliamentary Secretary to the Treasurer. They were sent out under cover of an accompanying letter which stated:

Pursuant to section 5 of the TPA, I have given my consent to Leucadia and Baldwin to rely on the overseas conduct of FMG, Chichester and John Andrew Henry Forrest as the basis for the application to the Supreme Court of Western Australia.

Enclosed are signed Instruments of Consent issued under subsections 5(3) and 5(4) of the TPA.

37 In my view, read with the covering correspondence, the consent that was given on 14 June 2011 pursuant to s 5(4) is adequate. Although capable of being more felicitously expressed by a direct reference to the TPA extending to conduct engaged in outside Australia by virtue of s 5(1) nevertheless, s 5(4) itself does contain within it the phrase 'extends by virtue of subsection (1) or (2) of this section ...'. So the internal reference within s 5(4), in turn leading back ultimately to s 5(1), when assessed in its overall context, is sufficient I believe in the end to enable me to read the s 5(4) consent as being properly founded.

38 The remaining question is whether these proceedings concerning alleged conduct of the defendants engaged in outside Australia, should, in the circumstances that have transpired insofar as the plaintiffs pursue s 87 relief, be legitimised by a grant of leave sought by the plaintiffs by reference to the date, 17 June 2011.

39 As I have already observed, I find that there is jurisdiction for this court to grant the leave in the terms sought, remembering that I am not now asked to make an order as extensive as granting leave nunc pro tunc. The following considerations apply to whether it is appropriate to grant the leave sought.

40 First, it is clear that the required ministerial consent under s 5(4) of the TPA has been obtained on 16 June 2011. Second, there can be no suggestion that the other (nonsection 87) relief sought in the writ of summons of 1 September 2010 has been tainted or undermined, so as not to have been legitimately pursued: see Tritec. Apart from the implications of the ministerial consents, the action was regularly commenced and unconditional memoranda of appearance were entered by the defendants on 9 September 2010.

41 Third, there was nothing that presented on the face of the writ of summons and its indorsement to indicate that Pt V conduct of the defendants engaged in outside Australia was raised or relied upon for the relief sought pursuant to s 87 of the TPA. Nothing then, as of 1 September 2010, manifested overtly as being in violation of a prior ministerial consent requirement that is required by s 5(4) of the TPA.

42 Fourth, to the extent that relief under the TPA is sought by way of negative or mandatory injunction, an alternate basis for the grounding that relief without need to obtain a ministerial consent before commencement of the action existed under s 80 of the TPA.

43 Fifth, the emergence of pleaded material facts concerning the defendants' alleged Pt V conduct engaged in outside Australia only came into focus when the statement of claim was filed on 22 October 2010. That event crystallised the deficiency of the ministerial consents, which up to that time had been latent. The situation is analogous to scenarios in which a required 'concise' indorsement (see RSC O 6 r 1(1)) to a writ of summons is filed, but in due course a more detailed statement of claim emerges which expands the range of the causes of action relied on beyond the scope of the indorsement. That situation is frequently encountered. It is usually addressed and regularised under a grant of leave to amend the writ and its indorsement in order for it to provide a proper foundation for the full range of causes of action which are sought to be pursued by the pleading. Sometimes that situation gives rise to limitation of action controversies which must be managed: see Stone James (A Firm) v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233. There are no limitations of these considerations manifesting for this application.

44 The disconformity between the narrow scope of the indorsement on the writ and a subsequent pleading is capable of being regularised under a grant of leave pursuant to RSC O 21 r 1(3)(b), bringing the pleading and the writ into alignment. This will ensure compliance with RSC O 20 r 2(2), which provides:

A Statement of Claim must not contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ or arises from facts which are the same as, or include or form part of, facts giving rise to a cause of action so mentioned.

45 Sixth, observations by Goldberg J in Cathay Pacific Airways Ltd v Assistant Treasurer and Minister for Competition Policy and Consumer Affairs [2010] FCA 510; (2010) 186 FCR 168 [104] present as relevant. His Honour there said [104] [106]:

1. Section 5(4) of the [TPA] does not preclude the Minister from granting consent in respect of conduct outside Australia in respect of which relief is sought pursuant to s 87 of the [TPA] where an application to the court to that effect has been made prior to the Minister giving his or her consent. Rather, s 5(4) is directed to vitiating any application made to the Court by an applicant otherwise than in accordance with its terms. Put shortly, whether the obtaining of consent of the Minister pursuant to s 5(4) of the [TPA] is obtained at the required time is a matter for an applicant, not the Minister. It is not for the Minister to determine whether the use which the applicant proposes to make of the consent sought pursuant to s 5(4) will be effective or valid in relation to a proceeding brought by the applicant.

1. It is open to Auskay to institute a further proceeding claiming relief pursuant to s 87 of the [TPA] against the same respondents as in the present principal proceeding in respect of the conduct alleged in the second amended statement of claim or to seek to file a further amended statement of claim in the principal proceeding claiming relief pursuant to s 87 of the [TPA] in respect of the same conduct alleged in the second amended statement of claim.

46 In the present case, the Macknay affidavit renders it clear that the two Ministers were advised that proceedings in the Supreme Court of Western Australia had been commenced prior to the seeking of ministerial consents: see Freehills' letter on behalf of the plaintiffs to the Hon Wayne Swan MP, Treasurer of the Commonwealth of Australia of 20 September 2010 (par 3, page 7 of Ms Macknay's affidavit) which commenced, 'As the proceedings have commenced and are likely to continue ...'. The Ministers were provided with copies of the writ of summons in CIV 2365 of 2010. So there can be no question that the consent by the Minister under s 5(4) was not lawfully given. As Goldberg J observed, the real question is the 'use' to which the now obtained ministerial consent is put.

47 Seventh, the issue of overseas conduct and a need for consent under s 5(4) of the TPA (and s 12AC(3) of the ASIC Act) cannot extend beyond the validity of the relief sought by the plaintiffs under s 87 of the TPA (or s 12GM of the ASIC Act). In the present case, the plaintiffs' writ did seek that relief. But it also validly pursued relief on a wider basis by reference to common law causes of action, declaratory relief on the proper construction of identified instruments, equitable relief and other statutory relief where the prerequisite condition applicable before the commencement of proceedings is not a relevant consideration. The evaluation may have carried different considerations towards the overall invalidity of the action had the relief specified on the indorsement to the writ of summons of 1 September 2010 been confined exclusively to relief under s 87 of the TPA (or s 12GM of the ASIC Act). But in the present case, the omission to obtain consent at commencement does not, in my view, infect the subsisting validity of the residual relief sought in respect of which the prior ministerial consent was not required.

48 It would be costly, inefficient, wasteful and, in the end, pointless to require the plaintiffs to discontinue the aspects of the present proceedings concerning s 87 and s 12GM, refile fresh proceedings seeking the same relief and then consolidate the fresh proceedings with the pared down initial action.

49 In Emanuele v ASIC (147), Kirby J referred with approval to observations made by McHugh JA (as he then was) in Woods v Bate (1986) 7 NSWLR 560, 567, where his Honour said:

In recent times the courts have shown great reluctance to invalidate an act done pursuant to a statutory provision because of the failure to comply with an antecedent condition ... Speaking generally, I think that, at the present time, the proper approach is to regard a statutory requirement, expressed in positive language, as directory unless the purpose of the provision can only be achieved by invalidating the result of any departure from it, irrespective of the circumstances or resulting in justice ...

50 There is a clear distinction between the procedural requirement relevant to Emanuele's case in respect of a grant of leave nunc pro tunc by reason of an initial noncompliance with s 459P(2) of the Corporations Act and the circumstances underlying the present case. Section 5(4) is not a provision of precisely the same character as a provision such as s 459P(2). Nevertheless, as Kirby J observed in Emanuele (152 153):

Courts today are less patient with meritless technicalities. They recognise the inconvenience that can attend an overly strict requirement of conformity to procedural preconditions. In the morass of modern legislation, it is easy enough, even for skilled and diligent legal practitioners (still more lay persons who must conform to the law) to slip in complying with statutory requirements.

51 Where necessary in order to avoid injustice, the court's power to correct a slip could extend under its inherent power to a grant of leave nunc pro tunc: see Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385, 391 392; 133 ALR 206 referring to the powers of the Federal Court. The powers of this court are comparable concerning its delivery of justice.

52 The present action is a matter managed in the CMC List. There are no prejudicial consequences contended by the defendants arising out of the grant of leave that is sought. There are no limitation issues arising. The leave which is now sought will obviate what I assess to be a tortuous alternate course leading eventually to the same end result - that would be wastefully expense and create delays arising out of a cumbersome partial restart - that can advantage noone: see RSC O 1 r 4A, O 1 r 4B(1) and (2) and O 4A r 2 which charges this court to avoid wasteful or inefficient outcomes where possible.

53 In circumstances where their application seeking leave is unopposed and these defendants contend for no prejudice from a grant of leave, rather than force the plaintiffs to start all over again with components of their action, I am persuaded that the course proposed by the plaintiffs is appropriate and within this Court's jurisdiction to deliver.

54 Accordingly, orders in terms of the plaintiffs' minute are appropriate. As agreed between the parties, I reserve all issues as to costs.