Meaden v Bell Potter Securities Limited

AND: BELL POTTER SECURITIES LIMITED (ACN 006 390 772)

JUDGE: EDMONDS J DATE: 24 FEBRUARY 2011 PLACE: SYDNEY

The Motion 1 This is a motion on notice by the respondent ('Bell') moving the Court for, inter alia, an order, pursuant to O 12 r 5 of the Federal Court Rules (Cth), that the applicant ('Ms Meaden') provide further and better particulars of her statement of claim as set out in a letter of request dated 28 January 2011 sent by Bell's solicitors to Ms Meaden's solicitors. The letter is annexure 'A' to Bell's notice of motion filed on the same date and provided reasons why each of 11 requests was pressed. 2 By letter dated 11 February 2011 sent by Ms Meaden's solicitors to Bell's solicitors, certain particulars were provided in response to requests 7 - 10 inclusive. In the light of those responses, on the hearing of the motion, Bell did not press those requests and I was informed by senior counsel for Bell that request 11 had 'shrunk' and that what was left 'will pretty much stand or fall upon the outcome of the identity question'. 3 Ms Meaden's solicitors took the position that all requests, pertaining to either the 'Claimants' (defined in [5] of the statement of claim as 'the Applicant and each group member') or 'group members' (defined in [2] of the statement of claim), being requests 1 - 3, 5, 6 and 11 were not proper requests for particulars and that request 4 was not a proper request for particulars in respect of Ms Meaden. 4 The motion was opposed by Ms Meaden on the following bases: (1) The purpose of particulars is to enable the respondent to know the case it has to meet in order to file a defence. This is not the basis of many of the particulars sought; (2) The request is misconceived to the extent that it seeks particulars from the group members and is contrary to authority; (3) Some particulars seek evidence.

Nature of the proceeding and background 5 Ms Meaden brought the proceeding as a representative proceeding under Pt IVA of the Federal Court of Australia Act 1976 (Cth) ('the FCA'). 6 The proceeding was commenced by application and statement of claim filed on 6 October 2010. Although the application seeks various declarations, in substance the proceedings relate to a claim for damages, alternatively equitable compensation, for various alleged contraventions of the Australian Securities and Investment Commission Act 2001 (Cth) ('ASIC Act') and the Corporations Act 2001 (Cth) arising out of Bell's dealings as a stockbroker in relation to Progen Pharmaceuticals Limited ('PGL'), which had its shares listed on the Australian Stock Exchange. 7 Of significance to the present application is the definition of the Part IVA group, which is defined in [2] of the application and the statement of claim: 'The group members to whom this proceeding relates are all persons who during the period from 13 December 2006 until 5 December 2007 ("Period"): (a) were party to a Financial Products Trading Account Agreement with the respondent ("Bell Potter"); (b) acquired interest in shares in Progen Pharmaceuticals Limited ("PGL"); and (c) as at the commencement of this proceeding have entered into a funding agreement with Litigation Lending Services Limited (ACN 129 188 825) and a retainer agreement with Slater & Gordon Lawyers Limited ACN 097 297 400); ("group members")' (emphasis added) 8 It can be seen from this definition that the group is, and was at the commencement of the proceeding, a closed group, all members of which must of necessity be known to Ms Meaden's solicitors. 9 The current proceeding was preceded by two earlier claims by individuals against Bell, both of whom are understood to be within the current group in the present proceeding. (1) The first such individual is Mr Rogan Richard Yates who filed a cross-claim in a Commercial List proceeding in the Supreme Court of New South Wales on 27 March 2008, in which he made various allegations against Bell, including that certain oral representations were made concerning PGL. Bell's then solicitors were informed in about February 2009 that Mr Yates intended to discontinue his cross-claim to join a Federal Court class action which was to be prepared by Slater & Gordon. (2) The second prior proceeding was brought by Mr Stephen and Ms Glenda Skeels in a Commercial List proceeding in the Supreme Court of New South Wales. Ms Meaden's solicitor in the current proceeding was also the solicitor acting for the Skeels in the Skeels proceeding, and the cross-claim in the Skeels proceeding also made allegations against Bell concerning oral representations. It is also understood that the Skeels' solicitors indicated to Bell's then solicitors that the proceedings would be discontinued to permit the Skeels to join a Federal Court class action being prepared by Slater & Gordon. 10 Of significance to the present application is the defined term 'the Claimants', which is defined in [5] of the statement of claim as meaning: '[T]he Applicant and each group member (together and severally "the Claimants").' 11 This definition of the Claimants is significant because it is then used extensively in the substantive allegations from [5] onwards in the statement of claim. 12 The allegations made in the statement of claim are not, as is sometimes the case, directed to conduct with respect to the applicant, but, without exception, are allegations that Bell engaged in certain conduct with respect to 'the Claimants'. In order to adequately plead to this statement of claim, Bell says that it needs to know, and is entitled to know, the identity of each Claimant.

Ms Meaden's opposition to the motion 13 It was submitted on behalf of Ms Meaden that the basis of the majority of Bell's requests for particulars was not to understand the nature of the case put against it so that it could properly plead its defence, but to ascertain whether 'the proceedings are appropriate to continue as a representative claim …'; in that regard, the request is a fishing attempt to bring an application under s 33N of the FCA. According to Ms Meaden, Bell is more concerned with trying to establish grounds for a s 33N application (eg see the first, second and fifth requests), than with any perceived difficulty with pleading to those paragraphs. 14 The breadth of the request for particulars in relation to group members was, according to Ms Meaden, contrary to authority and failed to recognise the differences between an application under Pt IVA of the FCA and an application in the Court's General Division. Reference was made to what was said by Forrest J in Thomas v Powercor Australia Limited (Ruling No 1) [2010] VSC 489 at [25]-[35], in particular to his Honour's adoption (at [35]) of two observations of Finkelstein J in P Dawson Nominees Pty Ltd v Brookfield Multiplex Limited (No 2) [2010] FCA 17 at [16], [17]; and at [37], [38]; and by Sackville J in a Full Court in Phillip Morris (Australia) Limited v Nixon (2000) 170 ALR 487 at [131]-[136]. 15 It was submitted on behalf of Ms Meaden that the authorities conclusively establish that the Court upholds the intent of Pt IVA of the FCA and is cautious not to make oppressive orders related to group members (whether under guise of particulars, discovery or the necessity to identify common issues) which impinge on the utility of the procedures and until the common questions have first been resolved.

Specific ReQuests 16 The remaining requests for particulars that were pressed on the motion were as follows:

Request 1: Please identify each person alleged to be a group member referred to in [2] of the statement of claim 17 In determining whether or not Ms Meaden is required to disclose to Bell the identify of the other group members, who together with Ms Meaden make up the 'Claimants' as defined in [5] of the statement of claim, Bell submitted that the Court should have regard to ss 37M and 37N of the FCA, which make it incumbent upon the parties to conduct themselves consistently with the overarching purpose of facilitating the just resolution of the dispute as quickly, inexpensively and efficiently as possible. That overarching purpose is mirrored in Practice Note CM 17 which applies to representative proceedings in the Court. In particular para 1.2(b) of CM 17 indicates that its purpose is to 'facilitate the efficient and expeditious conduct of representative proceedings, in particular by ensuring that the issues that are in contest are exposed at an early date'. 18 Further, according to Bell, paras 6.1-6.3 of CM 17 proceed on the assumption that the respondent will know the identity of group members and whether they are represented by Ms Meaden's solicitors. 19 The manner in which Ms Meaden has defined the group was, Bell submitted, significant in this case. The group was, upon the commencement of proceedings on 6 October 2010, a closed class. Furthermore, given that one of the elements which a group member had to satisfy in order to fall within the definition of the group was that 'at the commencement of this proceeding' the relevant group member had entered into, inter alia, 'a retainer agreement with Slater & Gordon Lawyers Limited', there can be no question that as and from 6 October 2010, the identity of each and every group member has been known to Ms Meaden and her solicitors, Slater & Gordon. Thus, there is no scope for there to be 'essentially passive' group members, a feature of other representative proceedings. 20 Bell points out that the definition of 'Claimants' is a central definition that is used through the statement of claim. All of the pivotal allegations against Bell are not made vis-à-vis Ms Meaden alone, but are made by reference to the 'Claimants': (1) at [5], where it is alleged that Bell agreed to supply financial services to each Claimant; (2) at [6] that each Claimant was either: (a) a consumer within the meaning of section 12ED(1) of the ASIC Act; and (b) a retail client within the meaning of Part 7.7 of the Corporations Act. (3) at [9] and [10], where it is alleged that by entering into specific relationships with each claimant Bell came to owe fiduciary obligations to each Claimant; (4) at [14], it is alleged that Bell made representations to each of the Claimants, and that those representations were 'partly in writing and partly oral'; (5) those representations are essential building blocks to the other representational cases pleaded, see for example [15]; (6) at [20] it is alleged that Bell took no or no adequate steps to disclose to 'the Claimants' various matters; (7) at [24] it is alleged that Bell impliedly represented to each Claimant certain matters; (8) at [41] to [44] there are allegations of causation, loss and damage for each Claimant; (9) at [45] there is an allegation Bell did not take any or any adequate step to warn the Claimants; (10) at [46] there is an allegation Bell did not exercise due care and skill providing services to the Claimants; (11) at [48] somewhat inconsistently there is an allegation that 'the Applicant and each of the group members suffered loss and damage'; (12) at [49] there is an allegation Bell took no or no adequate step to inform each Claimant; (13) at [50] there is an allegation that 'in respect of each Claimant' Bell acted in the position of conflict of interest; (14) at [52] there is an allegation that 'in respect of each Claimant' Bell 'profited' and 'breached its fiduciary obligations to each Claimant'; (15) at [55] there is an allegation Bell was required to give certain disclosures to each Claimant; and (16) at [57] there is again an allegation that 'the Applicant and some or all of the group members suffered loss or damage'. 21 It is plain that the allegations as pleaded pertain not only to Ms Meaden, but to the individual circumstances of each and every Claimant. According to Bell, it will be impossible for it to plead to any of these allegations, pertaining as they do to the individual circumstances of each Claimant, without knowing and being able to investigate its dealings with each of those Claimants. The only alternative will be for Bell to plead in relation to the individual circumstances of Ms Meaden, and not admit the allegations insofar as they concern the balance of the Claimants. That will of necessity needlessly put in issue matters which might otherwise not be in issue. The inexpensive and quick resolution of the proceeding would dictate that the sensible and indeed necessary course is for Ms Meaden to disclose what must of necessity be known to her, ie the identity of the other Claimants. 22 Senior counsel for Bell referred to Williams v FAI Home Security Pty Ltd [1999] FCA 1771 (FAI (No 1)) where Goldberg J required the applicants in that case to give particulars in relation to those group members then known to the applicants in relation to representations upon which they relied. His Honour said at [18]: 'I consider that it is important for the respondents to know at an early stage what is the extent of the representations made against them. I accept that further down the track there will be a need when the opt-out period is closed and where the group has probably expanded, for further particulars to be given. Nevertheless I consider it appropriate at this time for the respondents to be as fully informed as they can be from the information available to the applicants what are the matters in respect of which the representations have been made.' 23 In a later judgment, Williams v FAI Home Security Pty Ltd (No 2) [2000] FCA 726 at [33], his Honour released the respondent's solicitors from undertakings as to confidentiality that had previously been given to enable them to obtain instructions from the respondents in relation to the allegations made. His Honour concluded that he did not consider that there was any disadvantage or detriment to the applicants in supplying the names of the group members to the respondents so that they could give proper consideration to the allegations involved in the conduct of the distributors. 24 Counsel for Ms Meaden referred to s 33H of the FCA which provides: '(1) An application commencing a representative proceeding, or a document filed in support of such an application, must, in addition to any other matters required to be included: (a) describe or otherwise identify the group members to whom the proceeding relates; and (b) specify the nature of the claims made on behalf of the group members and the relief claimed; and (c) specify the questions of law or fact common to the claims of the group members. (2) In describing or otherwise identifying group members for the purposes of subsection (1), it is not necessary to name, or specify the number of, the group members.' Certainly that section does not require the group members to whom the proceeding relates to be identified by name in the application; in other words, absence of such identification in the application would provide no ground for strike out. On the other hand, the section provides little or no assistance to the determination of the question whether such particulars should be provided where the class is closed at the commencement of the proceeding and members of the class are, by definition, known to the applicant and his or her solicitors. 25 Bell submitted that Ms Meaden's submissions in [14] and [15] above, namely, that to order particulars would be 'contrary to authority' do not withstand even cursory scrutiny. According to Bell: (1) They are contrary to FAI (No 1); (2) They are contrary to what Jacobson J would have ordered, presumably after full argument, in Peter Hanne & Associates Pty Ltd v Village Life Ltd [2008] FCA 719 at [15] and [57]; (3) They are contrary to what occurred in Weimann v Allphones Retail Pty Ltd (No 3) [2009] FCA 1292 at [24], although the reasons for that order do not appear to be available. (Each of those proceedings concerned a class of group members defined by having entered into a litigation funding agreement: see Peter Hanne at [3] and Weimann v Allphones Retail Pty Ltd [2009] FCA 673 at [34].) Most importantly, according to Bell, none of the authorities cited by Ms Meaden demonstrate that it is in fact contrary to authority to provide particulars of the group members. What the cases cited by Ms Meaden, particularly Thomas v Powercor Australia, demonstrate is that in some cases the passivity of the group members' role might justify limiting the amount of involvement they have. 26 I agree with Bell's submissions. Ms Meaden's submissions fail to take into account the facts that (1) all of the group members have, prior to the commencement of the proceeding, elected to opt-in and subjected themselves to the rights and obligations of the Funding Agreement and (2) the statement of claim is pleaded by reference to allegations extending to each and every Claimant. 27 Finally, there is (unsurprisingly in light of the definition of the group and the way in which the pleading has been drawn) no evidence that answering the request will be oppressive. To the contrary, it is the most efficient way, in accordance with ss 37M and 37N, to advance the resolution of the justifiable controversy. The fact that there may be some ulterior motive attending Bell's request for such group members to be identified by name (see [13] above), does not detract from the conclusion that the provision of such particulars is required to allow Bell to properly plead its case in defence and to do so in the most efficient way to advance the resolution of the controversy between the parties.

Request 2: Please identify each Claimant and provide a copy of all documents comprising each FPTA Agreement entered into by the Applicant and each Claimant with Bell Potter as alleged in [5] of the statement of claim 28 Of significance in relation to this request, the particulars to [5] that are included within the statement of claim read: 'A copy of the document as pertains to the Applicant may be inspected by appointment at the offices of the Applicant's solicitors.' 29 The original answer to this request simply read: 'This FTPA Agreement as pertains to the Applicant is in the possession of the Defendant [sic]. A copy will be provided following discovery.' 30 Subsequently an affidavit of Ben Whitwell affirmed 3 February 2011 was provided and the explanation now given is Ms Meaden does not recall signing an FTPA Agreement. It appears therefore that the statement originally placed in the statement of claim was erroneous. According to Bell, the case now made on behalf of Ms Meaden should be made clear. Ms Meaden's submission that these are the best particulars she can provide at this stage are no answer, as the position now seems to be she wishes to run a case different from the one she has actually pleaded and particularised. 31 As to the balance of the Claimants, given that the pleading that has been filed contains a verification dated 6 October 2010 by Mr Moulis that: "factual and legal material available to me at present provides a proper basis for each allegation in the pleading", and given that the definition of group members specifies that they were people who were "party to a Financial Products Trading Account Agreement" with Bell, and that each of these individuals must be known to Slater & Gordon, having entered into a retainer agreement with them, it should neither be oppressive nor difficult for those particulars to be provided. 32 In opposing this request, Ms Meaden merely relies on the grounds referred to in [14] and [15] above for the submission that Bell is not entitled to seek such documents at this stage. I do not agree.

Request 3: For each Claimant please identify that Claimant and each fact, matter or circumstance to be relied upon in alleging that each Claimant was: (1) a 'consumer' as alleged in paragraph 6(a); and (2) a 'retail' client as alleged in paragraph 6(b) of the statement of claim 33 Particulars as to Ms Meaden have now been provided by Slater & Gordon's 11 February 2011 letter. 34 According to Bell, the details of those particulars amplify the necessity for the particulars for the remaining Claimants, because it will only be in light of that material that Bell will be able to make its own investigation to determine whether or not it wishes to put in issue, for each of the respective Claimants, whether or not they were in fact consumers or retail clients as alleged. 35 The evidence presently available suggests that Mr Yates and Mr and Mrs Skeels are group members. They alleged in the discontinued Supreme Court proceedings that they had purchased $2,672,379.04 and $2,426,536.39 PGL shares respectively. PGL has never made a profit, never declared a dividend and, according to Bell, on any view was a speculative investment. It is far from self-evident that Mr Yates and Mr and Mrs Skeels are 'consumers' and 'retail' clients. 36 In opposing this request, Ms Meaden merely relies on the grounds referred to in [14] and [15] above for the submission that Bell is not entitled to seek particulars at this stage. I do not agree.

Request 4: Please identify the average daily turnover of securities issued by PGL alleged in [12(b)] of the statement of claim 37 Ms Meaden's only answer to this request is that it is not a request for particulars, but is in fact a request for evidence. Bell's response to that answer is that it is not. 38 Ms Meaden must know what she alleges to be the average daily turnover of securities. It is an allegation made in [12(b)] of the statement of claim and must be a calculation having been done by Ms Meaden or a lawyer prior to the statement of claim being filed. Bell submitted that it cannot be difficult or onerous for Ms Meaden to disclose what she alleges that figure is. According to Bell, it is impossible for Bell to plead in any sensible way to this allegation, other than not admitting it, unless it knows what the alleged average figure should be. I agree with this submission.

Request 5: For the Applicant and each Claimant, please provide proper particulars of each alleged oral representation and/or recommendation alleged in the particulars to [14(iii)] of the statement of claim, including: the date of each alleged oral representation; the participants in each alleged conversation during which the representation or recommendation was conveyed; and the substance of what was alleged to have been said by whom, and to whom in each of those conversations. 39 Ms Meaden alleges she has provided adequate particulars of her own. Bell says she has not: she seeks to extract from Bell's solicitors an undertaking as to confidentiality of the name of the former employee who is alleged to have made the alleged oral representation and/or recommendation, where no basis for any such undertaking has been demonstrated, and Bell is not prepared, nor according to Bell should it be required, to provide it. Particulars of the name of that employee should be provided. If Ms Meaden wishes to make some application that she provides those particulars confidentially, she should do so, but she has not done so to date. 40 According to Bell, these particulars underscore the necessity for adequate particularisation of the identity of each of the Claimants. If it is alleged that the Claimants, and each of them had oral representations made to them, then it is plainly obvious that there is necessity for the identity of those people to be disclosed. 41 Reference was made by Bell to Connell v Nevada Financial Group Pty Ltd (1996) 139 ALR 723 at 728 where Drummond J said (emphasis added): 'It is not, I think, an objection to proceedings being brought as representative proceedings and founded upon an oral (or a written) representation made to the various class members that the representation may have been made on different occasions and in a different form of words to each class member, so long as the court can be satisfied that the substance and effect of what was orally represented is the same. But, in such cases, the court must be satisfied that each class member truly does set up a representation to the same substance and effect. Since the court can act of its own motion under s 33N(1) to order that a proceeding no longer continue as a representative proceeding and since it has inherent or implied power to ensure that its process is not abused by proceedings being brought as representative proceedings when in truth there is no issue of law or fact common to the claims of the group members, as required by s 33C(1)(c), it is incumbent on the applicants who bring a representative proceeding so based to plead with precision the terms in which the representation was made to each to show that, although made in differing words, the substance and effect of the representation made to each class member is truly the same. A pleading alleging in terms that oral representations were made to the different class members on different occasions to the same substance and effect will plainly not be sufficient to answer a challenge to the inappropriateness of the proceedings being brought as representative proceedings: it would generally be necessary for the applicants facing such a challenge to put in evidence setting out as precisely as possible the statements made that are said to contain each oral (or written) representation, if the pleading does not particularise the precise words said to contain the representation to each group member.' 42 I agree that it will be impossible for Bell to plead other than by way of non-admission unless it knows who those Claimants are, when it is alleged that representations/ recommendations were made to each of them, by whom and the substance of what was alleged to have been said. 43 In opposing this request, Ms Meaden merely relies on the grounds referred to in [14] and [15] above for the submission that Bell is not entitled to seek particulars at this stage.I do not agree.

Request 6: For each Claimant please provide proper particulars of each oral communication referred to in the particulars to [25(b)(iii)] of the statement of claim including: the date of such oral communication; the substance of the oral communication; from whom and to whom the oral communication passed. 44 It is now said, both in Ms Meaden's submissions, and for the first time in Slater & Gordon's 11 February 2011 letter, that "the applicant did not receive any oral communication". Therefore the particulars to [25] in the statement of claim can only be incorrect, unless they pertain solely to other group members, a matter not made clear in either Slater & Gordon's 11 February 2011 letter, nor the statement of claim itself. According to Bell, this again underscores the necessity to have some clarity as to who the Claimants are, and what is alleged in respect of each of them. 45 In opposing this request, Ms Meaden merely relies on the grounds referred to in [14] and [15] above for the submission that Bell is not entitled to seek particulars at this stage. I do not agree.

Request 11: For each Claimant please identify each share purchase of PGL shares, including the number of PGL shares purchased, the date and price of a share, the subject of the acquisitions referred to in [42] of the statement of claim 46 Ms Meaden's answer to this is that adequate particulars have been provided to [42]. That may be so in terms of Ms Meaden. It is not so in respect of the remaining Claimants. These facts should be readily ascertainable, and indeed Bell could itself undertake such investigations were the identities of the remaining Claimants provided to it. 47 In opposing this request, Ms Meaden merely relies on the grounds referred to in [14] and [15] above for the submission that Bell is not entitled to seek particulars at this stage. I do not agree.

Conclusion 48 For the foregoing reasons, I have come to the conclusion that Bell is entitled to the particulars requested in Requests 1 to 6 inclusive as well as the particulars in Request 11 in so far as the Claimants, other than Ms Meaden, are concerned, to enable it to constructively plead its defence and that Ms Meaden should be ordered to provide them now, rather than down the track following the trial of common questions. 49 I am fortified in that view by what was said by Goldberg J in FAI (No 1) at [17] and by Lehane J and Hely J in the extracts from their respective reasons in the cases referred to by Goldberg J: 'I am prepared to accept that in some respects, as counsel for the applicants pointed out, that Pt IVA may have an impact on pleadings. Indeed, the terms of Pt IVA are such that it has to be recognised and reference to it incorporated in the statement of claim. But as Lehane J pointed out in Bright v Femcare [1999] FCA 1377 at [18]: "There is nothing in Pt IVA which dispenses with the requirement that the applicant plead the material facts on which all claims for relief are made on behalf of each group member. To the extent that that is not done the pleading, like a pleading in any other proceeding, is liable to be struck out. Equally, if a claim made on behalf of any group member is to succeed, the factual basis of each element of the cause of action will have to be established by evidence." Hely J made similar observations in Harrison v Lidoform Pty Ltd (24 November 1998, unreported), where he said at 14: "A representative party may be able to enforce the rights of others in a proceeding brought under Part IVA but the statement of claim needs to identify what the rights of those represented are claimed to be and how they are said to arise. In my view this is necessary in order to give definition to the proceedings, and to expose the issues for determination in the proceedings. It is also necessary that class members know with some precision the nature of the case which the applicant seeks to bring on their behalf so that they can decide, in terms of s 33J, whether to opt out of a claim formulated in that way. A judgment given in a representative proceeding binds all group members other than persons who have opted out: Section 33ZB of the Federal Court of Australia Act 1976. Whilst the amended statement of claim remains in its present form, one simply does not know to what it is that group members are bound. The applicant points to ss 33Q, 33R, 33S and 33ZF as mechanisms by which orders can later be made so as to expose and determine the issues which will arise in the proceedings. On this approach, the issues in the case, insofar as it is a representative action, will emerge by some means other than the pleadings. I do not think that Pt IVA of the Act was intended to operate in this way." Although the pleading before Hely J was quite different from the pleading before me and, in a sense, was more inadequate, I consider that the observations of his Honour are apposite to the matters presently before me.' 50 I therefore propose to make the following orders:

1. On or before 14 April 2011 the applicant provide the respondent with the further and better particulars requested in the letter dated 28 January 2011 from the respondent's solicitors to Mr Ben Whitwell of the applicant's solicitors relating to paragraphs 2, 5, 6(a), 6(b), 12(b), 14(iii), 25(b)(iii) and 42 (but in the case of [42] only in respect of claimants other than the applicant) of the statement of claim dated and filed 6 October 2010.
2. The applicant pay the respondent's costs of the motion, as agreed or taxed. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.