Melbourne City Investments Pty Ltd (now called ACN 161 046 304 Pty Ltd) v Treasury Wine Estates Limited; In the Matter of Treasury Wine Estates Limited

The Relevant Terms of the Settlement Deed 28 The Settlement Deed was in a form commonly used to document the settlement of representative proceedings under Pt IVA of the FCA Act involving issues of the kind raised by MCI in the present case. 29 The Recitals in the Settlement Deed were in the following terms: RECITALS A. Jones, represented by Maurice Blackburn, commenced proceedings against TWE in the Federal Court of Australia, proceeding no. NSD 660 of 2014 (the Proceeding), being a representative proceeding under Part IVA of the Act. B. In the Proceeding, Jones, on his own behalf and for and on behalf of the Group Members, claims loss and damage from TWE in respect of alleged causes of action as pleaded in the Third Further Amended Statement of Claim dated 19 July 2017. C. TWE, represented by Herbert Smith Freehills, denies the claims made in the Proceeding and has raised a number of defences to the claims. D. Jones (on his own behalf and on behalf of the Group Members) and TWE have agreed to seek approval of a settlement of the Proceeding from the Federal Court of Australia under section 33V of the Act on the terms set out in this Deed and without any admission of liability by TWE. E. This Deed has been entered into by Jones for himself and on behalf of Group Members as the representative of Group Members pursuant to Part IVA of the Act. F. IMF Bentham has provided litigation funding to Jones and certain of the Group Members for the conduct of the Proceeding. 30 Clause 1 is the first clause in that part of the Settlement Deed which is headed "OPERATIVE PROVISIONS". Clause 1 is headed "Interpretation". Clause 1.1 contained a number of definitions to which I will return shortly. Clause 1.2 provided as follows: 1.2 In this Deed, unless the contrary intention appears: (a) the singular includes the plural and vice versa; (b) headings are for convenience only and do not affect the interpretation of this Deed; (c) where the day on or by which any thing is to be done is not a Business Day, that thing must be done on or by the next Business Day; (d) a reference to a document includes any variation, replacement or novation of it; (e) the meaning of general words is not limited by specific examples introduced by the word "including"; (f) a reference to a person includes the person's executors, administrators, successors, substitutes and assigns; (g) a reference to a group of persons is a reference to any 2 or more of them and each of them individually; and (h) an agreement, representation or warranty in favour of (or from) 2 or more persons is for the benefit of (or from) them jointly and each of them individually. 31 Clause 2.1 of the Settlement Deed was in the following terms: 2 Settlement Payment 2.1 Subject to the Approval Orders being made and not overturned on appeal, the Parties agree to settle the Proceeding on the following basis: (a) TWE will pay the Settlement Sum in accordance with clause 3.2; and (b) the Parties will provide the releases set out in clause 6. 32 The Settlement Sum was defined in cl 1.1. It is a substantial sum. The amount thereof is confidential. The definition of the Settlement Sum expressly includes interest, costs, GST and a relatively small amount payable to Mr Jones as reimbursement for his time and expenses in prosecuting the Jones proceeding. The intention of the parties to the Settlement Deed was that the Settlement Sum should cover all claims made by Mr Jones in the Jones proceeding including his claims for the costs thereof. 33 A Settlement Scheme (as defined in cl 1.1) was required to be established under the Settlement Deed in order to enable the distribution of the Settlement Sum to those entitled (cl 4). There was to be a provision in the Settlement Scheme contemplated by cl 4 of the Settlement Deed which would provide for the payment of Mr Jones' legal costs and disbursements (including GST) out of the Settlement Sum. 34 The settlement reflected in the Settlement Deed was subject to the approval of the Court (cl 5). 35 Clause 5.1 provided that Mr Jones must apply to the Court for orders approving the form and content of a notice to be given to Registered Group Members (as defined in the Settlement Deed) by which they were to be notified of the settlement and its essential terms. These orders were defined in the Settlement Deed as the "First Orders". 36 Clauses 5.2, 5.3 and 5.4 provided: 5.2 As soon as practicable after the making of the orders referred to in clause 5.1, Jones shall apply to the Court for the following orders (Approval Orders): (a) an order pursuant to s 33V of the Act approving the settlement of the Proceeding on the terms set out in this Deed including clause 4.1 above; (b) an order authorising Jones, nunc pro tunc, to enter into this Deed on behalf of each of the Group Members, pursuant to s 33ZF of the Act; (c) orders: (i) dismissing the Proceeding with no order as to costs and vacating all outstanding costs orders made in the Proceeding, subject to that order being stayed until the administration of the Settlement Scheme is complete; (ii) alternatively, providing that the Proceeding shall be dismissed with no order as to costs and the vacation of all outstanding costs orders made in the Proceeding on the completion of the administration of the Settlement Scheme; (d) an order appointing Maurice Blackburn as administrator of the Settlement Scheme (Settlement Administrator); and (e) such other orders as are considered by Jones to be appropriate and necessary to facilitate the fair distribution of the Settlement Sum to Jones and the Registered Group Members (but which have no impact upon the payment by TWE of the Settlement Sum), such as an order for a common fund or for the application of a funding equalisation factor. 5.3 Jones is responsible for tendering such evidence to the Court as may reasonably be required to facilitate the making of the orders referred to in clause 5.2. 5.4 TWE will instruct its legal representatives to do all things that are reasonably necessary and consistent with their professional obligations to enable Jones to obtain the orders referred to in clause 5.2 above. 37 By cl 5.2(c) of the Settlement Deed, the parties agreed that Mr Jones should apply to the Court for an order dismissing the Jones proceeding upon the basis that there be no orders as to the costs thereof and upon the additional basis that all outstanding orders for costs previously made in that proceeding be vacated. Ultimately, this was done and, on 16 August 2018, I ordered that, to the extent necessary: (a) Mr Jones' Application be dismissed; (b) All previous orders for costs be vacated; and (c) There be no orders as to the costs of the Jones proceeding. 38 Clause 5.2 and the orders which I made on 16 August 2018 reflected the agreement of the parties to the Settlement Deed to the effect that Mr Jones' costs of the Jones proceeding were to be addressed by cl 4.1(b) and that TWE was to pay its own costs of that proceeding. The Court was asked not to make any orders as to the costs of that proceeding. The Court was content to comply with that request. 39 Clause 5.5(a) and cl 5.5(b) provided: 5.5 Subject to clauses 5.6 and 5.7, after the expiration of the Appeal Period (but not before that time): (a) clause 6.1 will become operative; (b) the plea in bar provided in clause 6.2 will become operative; … 40 Clause 5.5(c), cl 5.5(d) and cll 5.6 to 5.8 are not presently relevant. Clauses 5.6 to 5.8 addressed what was to happen if an appeal against the Approval Orders was filed and if, as a result, those Orders were set aside. In fact, no appeal against the Approval Orders was filed. 41 Clause 6 was in the following terms: 6 Releases and Plea in Bar 6.1 Subject to clause 5.5, upon the making of the Approval Orders and the payment of the Settlement Sum into the TWE Settlement Distribution Account: (a) the Proceeding, including Jones' and the Group Members' claims for damages, compensation, interest and legal and administrative costs and disbursements (present and future) in the Proceeding are fully and finally settled; (b) Jones, on his own behalf and on behalf of all Group Members, releases and discharges TWE and its Related Parties jointly and severally from: (i) the claims made by Jones or any Group Member in the Proceeding; (ii) any claim in relation to the matters which are as at the date of this Deed or were at any time the subject of the Proceeding or any part of the Proceeding or which are raised in the Proceeding; and (iii) any claim, action, demand, suit or proceeding for damages, debt, restitution, equitable compensation, account, interest, injunction, specific performance or any other remedy that Jones or any Group Member has or may have against TWE and/or any of its Related Parties in relation to the matters the subject of the Proceeding or any part of the Proceeding or which are raised in the Proceeding, whether arising at common law, in equity, or under statute or otherwise; (c) TWE releases Jones and the Group Members jointly and severally from: (i) any claim in relation to the matters which are as at the date of this Deed or were at any time the subject of the Proceeding or any part of the Proceeding or which are raised in the Proceeding; and (ii) any claim, action, demand, suit or proceeding for damages, debt, restitution, equitable compensation, account, interest, injunction, specific performance or any other remedy that TWE and/or any of its Related Parties has or may have against them in relation to the matters the subject of the Proceeding or any part of the Proceeding or which are raised in the Proceeding, whether arising at common law, in equity, or under statute or otherwise; (d) IMF Bentham: (i) releases and discharges TWE and its Related Parties jointly and severally from any claim, action, demand, suit or proceeding for damages, debt, restitution, equitable compensation, account, interest, injunction, specific performance or any other remedy that IMF Bentham and/or any of its Related Parties has or may have against them in relation to the matters the subject of the Proceeding, any part of the Proceeding or which are raised in the Proceeding, whether arising at common law, in equity, or under statute or otherwise; and (ii) agrees not to provide directly or indirectly litigation funding for, or encourage any person to bring, any claim or proceeding against TWE and/or any of its Related Parties arising out of any matters which are or were at any time the subject of the Proceeding, or any part of the Proceeding, or which relates in any way to conduct (including any omission) of TWE at any time in the period from 17 August 2012 to 15 July 2013 (inclusive), except to the extent necessary to give effect to any Funding Agreement; and (e) TWE releases and discharges IMF Bentham and each of its Related Parties from any claim, action, demand, suit or proceeding for damages, debt, restitution, equitable compensation, account, interest, injunction, specific performance or any other remedy that TWE and/or any of its Related Parties has or may have against them in relation to the matters the subject of the Proceeding, any part of the Proceeding or which are raised in the Proceeding, whether arising at common law, in equity, or under statute or otherwise, and under any deed poll given by IMF Bentham in favour of TWE in relation to or in connection with adverse costs orders in the Proceeding. 6.2 Subject to clause 5.5, the Parties, Group Members and any Related Parties of TWE, may plead this Deed in bar to any claim or proceeding by any other Party bound by this Deed in respect of any claim arising out of or related in any way to the matters which are as at the date of this Deed or were at any time the subject of the Proceeding. 42 A number of expressions used in cl 6 or relevant to a proper understanding of cl 6 were defined in cl 1.1. Each of those expressions and its respective definition is set out below: Approval Orders means an order or orders of the Court approving the settlement of the Proceeding pursuant to s 33V of the Act on the terms set out in this Deed as set out in clause 5.2. First Orders has the meaning set out in clause 5.1. Group Member has the meaning set out in paragraph 1(b) of the 3FASOC other than those persons who have opted out of the Proceeding pursuant to s 33J of the Act and includes, for the avoidance of doubt, those persons, funds or trusts in respect of which the respective Group Member's acquisition of shares in TWE is the subject of a claim to which the Proceeding relates. Party means a party to this Deed and, in respect of Jones, both in his own capacity and in his capacity as representative of Group Members pursuant to Part IVA of the Act and for and on behalf of the Group Members. Registered Group Members means the persons (each of whom is a Group Member) who or which had provided to IMF Bentham the details required by the Class Closure and Claim Preclusion Orders in paragraphs [10] to [13] of the judgment in Jones v Treasury Wine Estates Limited [2017] FCA 296, which details were conveyed to the legal representatives for TWE on or before 7 June 2017. Related Body Corporate has the meaning given in the Corporations Act 2001 (Cth). Related Parties means, in respect of a Party, the Related Bodies Corporate of that Party and the present and former directors and officers of that Party. Settlement Approval Date is the date on which the Court makes the Approval Orders. 43 In the Settlement Deed, "Proceeding" has the meaning given to it in the Recitals. In substance, it is defined as the Jones proceeding. 44 As between Mr Jones and the group members, on the one hand, and TWE, on the other hand, the releases provided in the Settlement Deed are mutual. The text of cl 6.1(b)(ii) and (iii) mirrors the text of cl 6.1(c)(i) and (ii). Of course, given that Mr Jones was the plaintiff in the Jones proceeding, the release which he provided in favour of TWE also covered the claims described in cl 6.1(b)(i). These claims were the claims actually made by Mr Jones in the Jones proceeding. Those claims were distinguished from the broader classes of claims described in subcl (ii) and subcl (iii) of cl 6.1(b). TWE, of course, made no claims in the Jones proceeding. That is why cl 6.1(c) did not contain a clause which mirrored cl 6.1(b)(i). 45 Clause 6.1(a) made clear that the Jones proceeding was "fully and finally settled" upon the terms of the Settlement Deed. 46 The Settlement Deed also addressed other matters designed to facilitate the effectuation of the settlement recorded therein. 47 Clause 11.1 provided: 11 Obligations of the Parties 11.1 The Parties agree to execute all documents, refrain from performing any act incompatible with and to do all acts reasonably necessary to comply with the terms of this Deed, including but not limited to applying for or consenting to the First Orders and the Approval Orders. 48 Clause 13.1 provided: 13 Entire agreement and legal effect 13.1 This Deed is legally binding on the Parties and constitutes the entire agreement of the Parties in relation to the matters the subject of this Deed. 49 Clause 17 was in the following terms: 17 Warranty as to capacity, representations and legal advice 17.1 Each Party warrants that they: (a) have the legal capacity and power to enter into this Deed and have obtained all necessary consents and approvals to do so; and (b) have not entered into this Deed in reliance upon any representations by or on behalf of any other Party which are not set out in this Deed. 17.2 Jones warrants that he has authority to enter into this Deed for and on behalf of Group Members as a representative of the Group Members pursuant to Part IVA of the Act. 50 The Settlement Deed is governed by the law of New South Wales (cl 20.1). Each party to the Deed agreed to submit to the jurisdiction of the courts of the State of New South Wales (cl 20.2). 51 That submission to jurisdiction was not exclusive.

Consideration 54 I mention some preliminary matters. 55 MCI relies only upon cl 6.1(c) and cl 6.2 in support of its ultimate proposition to the effect that TWE is precluded from making its present claim for costs. Clauses 6.1(a), 6.1(b) and 6.1(d) are not directly relevant to the present application. Those clauses do, however, form part of the context in which cl 6.1(c) and cl 6.2 are to be construed. 56 MCI did not place any specific reliance upon the terms of cl 11.1 of the Settlement Deed. 57 Although the parties to the Settlement Deed executed that Deed prior to the date when I made the Approval Orders, the principal clauses in the Settlement Deed did not become operative until the Court had approved the settlement as reflected in the Settlement Deed under s 33V of the FCA Act and the time for appealing those Orders had expired or, alternatively, any appeal from those Orders had been ultimately unsuccessful. The obligation imposed upon TWE pursuant to cl 2.1(a) of the Settlement Deed to pay the Settlement Sum was subject to the Approval Orders being made and not being overturned on appeal. The coming into effect of the releases set out in cl 6 was also subject to the Approval Orders being made and not being overturned on appeal (see cll 2.1(b), 5.5(a) and 5.5(b)). 58 No-one interested in the Jones proceeding and/or the two sets of MCI proceedings has ever suggested that I did not have power to make the Approval Orders which, according to their terms, noted that, subject to cl 5.5 of the Settlement Deed, the approval of the settlement would enliven the releases provided in cl 6.1 of the Settlement Deed and the plea in bar provision provided in cl 6.2 of the Settlement Deed and that the persons affected and bound by the settlement were MCI, TWE, the group members, IMF Bentham Limited and Maurice Blackburn Pty Ltd (see par 2 and par 4 of the Approval Orders). Nor has anyone ever suggested that Mr Jones did not have authority to enter into the Settlement Deed on behalf of himself and on behalf of group members in the Jones proceeding. 59 In Farey v National Australia Bank Ltd [2016] FCA 340 (Farey), at [45], Beach J held that the Court has clear statutory power to make an order approving the provision of (inter alia) releases given in favour of a defendant and its related entities in a proceeding instituted under Pt IVA of the FCA Act even if those releases might be perceived to be broader than the claims actually made in the proceeding itself. His Honour relied upon s 33ZF and s 33Z(1)(g) of the FCA Act as the source of such power. His Honour also held that, pursuant to s 33ZB of that Act, any order made under s 33Z(1)(g) would bind accordingly. 60 In the same case, at [46]-[49], his Honour held that, in order to achieve the primary aim of achieving a settlement of the litigation, an applicant in a representative capacity in a proceeding instituted by that applicant under Pt IVA of the FCA Act has implied statutory authority to negotiate and agree to a settlement of that proceeding subject to Court approval and also has such authority to negotiate and agree to ancillary and reasonably tailored and proportionate terms and conditions as part of such a settlement, including broad releases. 61 The reasoning adopted by Beach J in Farey would support such an applicant having authority to agree to broad mutual releases as part of a settlement of a Pt IVA proceeding. Of course, the respondent in such a case would, as was the case with TWE here, usually have full capacity to negotiate and agree a settlement which included broad mutual releases. A respondent would have no need to seek the approval of the Court to its entering into such a settlement. 62 I agree with the opinions of Beach J to which I have referred at [59] and [60] above and propose to follow them in the present case. 63 Here, the parties to the Settlement Deed agreed to provide mutual releases in the terms of cl 6.1 and to authorise expressly each of them (and others) to plead in bar the terms of those releases to any claim or proceeding by any other party bound by the Deed in respect of the specified subject matter. 64 In those circumstances, I have no doubt that, once the Approval Orders were made, the releases in the terms of cl 6.1(b) provided by Mr Jones, purportedly on his own behalf and on behalf of all group members in the Jones proceeding, became operative. For similar reasons, I think that the releases provided by TWE in favour of Mr Jones and all group members in the Jones proceeding jointly and severally in the terms of cl 6.1(c) of the Settlement Deed also became operative once the Approval Orders were made. 65 In the present case, TWE did not submit that the group members (as defined in the Jones proceeding) did not have the benefit of the release provided for in cl 6.1(c) of the Settlement Deed nor did it submit that group members did not have standing to plead the Settlement Deed as an answer to a claim or proceeding falling within cl 6.2 of that Deed. Its case was that, upon the true construction of those clauses, MCI was not released and discharged from TWE's present claim for costs. 66 Ultimately, the only issue between the parties to the present application was the issue of construction which I identified at [10(f)] above. 67 I shall now turn to consider that question of construction. 68 I have set out cl 6 at [41] above and the Approval Orders at [19] above. 69 There are two separate releases in cl 6.1(c). The first is provided for in cl 6.1(c)(i) and the second is found in cl 6.1(c)(ii). There may be some overlap between the scope of each of those releases. 70 That which is released pursuant to cl 6.1(c)(i) is "any claim" of the kind more particularly described in the balance of that subclause. That which is released pursuant to cl 6.1(c)(ii) is "any claim, action, demand, suit or proceeding" of the kind more particularly described in the balance of that subclause. That which is the subject of the plea in bar provision in cl 6.2 is "any claim or proceeding" by a party to the Settlement Deed of the kind more particularly described in the balance of that clause. 71 Thus, the first requirement of all three clauses is the making of a claim (cl 6.1(c)(i)) or a claim or something akin to a claim (cl 6.1(c)(ii) and cl 6.2). 72 Subject to satisfying the requirements of cll 6.1(c)(i), 6.1(c)(ii) and 6.2 as to the type of claim that was to be released, TWE's present claim for costs would qualify as a "claim" within the meaning of each of cll 6.1(c)(i), 6.1(c)(ii) and 6.2. 73 The type of claim with which cl 6.1(c)(i) is concerned is a claim "in relation to [certain] matters". Those "matters" are matters which "are as at the date of [the Settlement Deed] [12 September 2017] or were at any time the subject of [the Jones proceeding] or … which are raised in [the Jones proceeding]". 74 The type of claim with which cl 6.1(c)(ii) is concerned is a claim "that TWE and/or any of its Related Parties has or may have against [Mr Jones and the Group Members] in relation to the matters the subject of [the Jones proceeding] … or which are raised in [the Jones proceeding] …" howsoever arising. 75 Clause 6.2 authorises a plea in bar to "… any claim … by any other Party bound by this Deed [including, for example, TWE] in respect of any claim arising out of or related in any way to the matters which are as at the date of [the Settlement Deed] [12 September 2017] or were at any time the subject of the [Jones proceeding]". 76 A concept common to all three clauses is that which is captured by the language "… matters which are the subject of [the Jones proceeding] or which are raised in that proceeding". 77 In WDR Delaware Corporation v Hydrox Holdings Pty Ltd (2016) 245 FCR 452 (WDR), when considering the meaning of "matter" in s 7(2)(b) of the International Arbitration Act 1974 (Cth), I said (at 470-472 [102]-[112]): In order to ascertain whether the Court is obliged to grant a stay pursuant to s 7(2)(b) of the IAA, it is incumbent upon the Court first to decide whether the Court proceeding involves the determination of a matter that, in pursuance of the [arbitration] agreement, is capable of settlement by arbitration. A similar enquiry is required by Art 8 of the Model Law. The language is different but the substance of the enquiry is the same. How then does the Court identify the matter or matters the subject of the Court proceeding in order to then go on to determine whether some or all of those matters are arbitrable? The word "matter" in s 7(2)(b) of the IAA is not used in the constitutional sense (Tanning Research Laboratories Inc v O'Brien (1990) 169 CLR 332 (Tanning) at 351 per Deane and Gaudron JJ and Comandate at 105-106 [235] per Allsop J). Ordinarily, the nature and extent of the "matters" involved in a Court proceeding are to be ascertained from the pleadings and from the underlying subject matter upon which the pleadings, including any defence, are based (Robotunits at 311-312 [19]). As Deane and Gaudron JJ said in Tanning (at 352), the enquiry is to ascertain the substance of the controversy between the parties in the court proceeding or, as was submitted by Woolworths, the substantive questions in dispute. These may not necessarily be the same as the ultimate questions for determination in the proceeding (Recyclers of Australia Pty Ltd v Hettinga Equipment Inc (2000) 100 FCR 420 at 426 [18] per Merkel J). The matters to be determined in any given proceeding are distinct from the proceeding itself and multiple matters may exist within the one legal proceeding. As Woolworths submitted, this important aspect is recognised by the terms of s 7(2) itself. In the present case, the Court must look to the Originating Process, the Concise Statement and Mr O'Neale's first affidavit in order to ascertain the matter or matters the subject of the proceeding. In Tanning, Deane and Gaudron JJ said (at 351-352): Even if some issue in addition to the amount of enforceable indebtedness must be determined before the proof of debt proceedings can be finally decided, that would not oust the operation of s. 7(2) of the Act. By requiring that the proceedings or so much of the proceedings as involves the determination of a matter capable of settlement by arbitration be stayed, s. 7(2) clearly contemplates that the proceedings may encompass issues additional to those constituting "a matter ... capable of settlement by arbitration". See Flakt Australia Ltd. v. Wilkins & Davies Co. Construction Ltd. [[1979] 2 N.S.W.L.R. 243]); Allergan Pharmaceuticals Inc. v. Bausch & Lomb Inc. [(1985) 7 A.T.P.R. 40-636]. The word "matter" is not defined in the Act. In the quite different context of Ch. III of the Constitution, it has been held that the word "matter" means "the whole matter" and encompasses "all claims made within the scope of the controversy": Fencott v. Muller [(1983) 152 C,.L.R. 570, at p. 603]. See also Philip Morris Inc. v. Adam P. Brown Male Fashions Pty. Ltd. [(1981) 148 C.L.R. 457, at p. 475]. However, in any context, "matter" is a word of wide import. In the context of s. 7(2), the expression "matter ... capable of settlement by arbitration" may, but does not necessarily, mean the whole matter in controversy in the court proceedings. So too, it may, but does not necessarily encompass all the claims within the scope of the controversy in the court proceedings. Even so, the expression "matter ... capable of settlement by arbitration" indicates something more than a mere issue which might fall for decision in the court proceedings or might fall for decision in arbitral proceedings if they were instituted. See Flakt [1979] 2 N.S.W.L.R., at p. 250]. It requires that there be some subject matter, some right or liability in controversy which, if not co-extensive with the subject matter in controversy in the court proceedings, is at least susceptible of settlement as a discrete controversy. The words "capable of settlement by arbitration" indicate that the controversy must be one falling within the scope of the arbitration agreement and, perhaps, one relating to rights which are not required to be determined exclusively by the exercise of judicial power. See Mustill and Boyd, Law and Practice of Commercial Arbitration in England, 2nd ed. (1989), pp. 149-150, where it is noted that "English law has never arrived at a general theory for distinguishing those disputes which may be settled by arbitration from those which may not" but that the powers of an arbitrator "are limited by considerations of public policy and by the fact that he is appointed by the parties and not by the state". The substance of the controversy between T.R.L. and the liquidator is the amount, if any, enforceable as a debt for goods sold and delivered to Hawaiian under the licence agreement. That controversy is susceptible of settlement as a discrete controversy. And, when stated in those terms, the controversy is readily seen as one arising out of or relating to the licence agreement and thus encompassed within the agreement to arbitrate contained in cl. 10. Moreover, the controversy is as to a matter of a kind which is frequently the subject of arbitration proceedings and which could not be said to require determination only by the exercise of judicial power. A "matter" for the purpose of s 7 of the IAA may or may not comprise the whole subject matter of any given proceeding. A "matter" is something more than a mere issue or question that falls for decision (Tanning at 351 per Deane and Gaudron JJ; and Flakt Australia Ltd v Wilkins & Davies Construction Co Ltd [1979] 2 NSWLR 243 at 250 per McLelland J). As submitted by the plaintiffs, the Court must first identify the "matter or matters" to be determined in the proceeding before asking whether those matters fall within the scope of the arbitration agreement and, if so, whether they are arbitrable. The plaintiffs argued that, in the present case, there is, in substance, only one matter involved in the proceeding for the purpose of s 7 of the IAA, namely, whether Hydrox should be wound up on either of the statutory bases relied upon by the plaintiffs. The plaintiffs contended that difficulties arise if one attempts to parse the proceeding into separate, subsidiary matters. They went on to submit that the Court is being asked to exercise a power, a pre-condition to which is the formation of an opinion of the Court as to the appropriateness of the relief. Under s 233 of the Corps Act, the Court is directed to form such an opinion by the use of the word "considers" in the chapeau to s 233(1) and under s 461(1)(k) of the Corps Act the Court is required in direct terms to form an opinion that the company should be wound up. 78 I appreciate that, in WDR, I was considering the meaning of the word "matter" in a specific statutory context. Nonetheless, I consider that the reasoning which I employed in order to arrive at the correct meaning of that word in s 7(2)(b) of the International Arbitration Act 1974 (Cth) in that case is helpful in interpreting the phrases in cll 6.1(c)(i), 6.1(c)(ii) and 6.2 which I have highlighted at [73]-[76] above. 79 Accordingly, the enquiry required here by the use of the phrase "matters (etc)" is to identify the substance of the controversy between the parties in the Jones proceeding or the substantive questions in dispute in that proceeding. In this context, a "matter" is something more than a mere issue or question that falls for decision. 80 In order to identify the relevant matters which were the subject of the Jones proceeding or which were raised in that proceeding, the Court must look to the pleadings and to any particulars provided of the allegations made in those pleadings. In order to assist the Court in this regard, TWE tendered in support of its present application for costs the Third Further Amended Statement of Claim and the Second Further Amended Defence filed in the Jones proceeding. These pleadings were the most recently filed pleadings in the Jones proceeding prior to its settlement. TWE did not file any Counterclaim or Cross-Claim in the Jones proceeding. Nor did it ever file such a document in this proceeding. 81 Mr Jones' Statement of Claim in the Jones proceeding was lengthy and complex. It is neither necessary nor desirable to traverse that pleading in detail. It is sufficient for present purposes to give a brief description of the case which Mr Jones sought to make in the Jones proceeding. 82 Mr Jones' principal allegation in the Jones proceeding related to TWE's Australian Securities Exchange Release dated 15 July 2013 in which it announced that it expected to make substantial provisions in its accounts for the Financial Year ended 30 June 2013. In that Release, TWE said that it expected to achieve lower earnings growth for the 2013-2014 Financial Year arising from actions which it had determined it would take in respect of wine inventory held by its US distributors. Mr Jones alleged that, until it issued the ASX Release of 15 July 2013, TWE had, for some time, persistently overvalued that inventory. 83 In particular, Mr Jones alleged that, in August 2012, TWE made a number of misleading statements as to the value of inventory held by its US distributors and thereafter made several additional misleading statements to the same effect. Mr Jones alleged that TWE should have disclosed in August 2012 (at the latest) the true position concerning the value of the wine inventory held by its US distributors. Mr Jones went on to allege that, by reason of TWE's misleading and deceptive conduct and its unlawful failure to disclose the true position, the share price of shares in TWE in the period from 17 August 2012 to 15 July 2013 was greater than the true value of those shares in that period. In sum, Mr Jones alleged that he and the other group members suffered loss or damage as a result of TWE's unlawful conduct being the difference between the price paid by him and the true value at the time of the relevant shares. 84 The substance of the dispute raised by MCI against TWE in this proceeding is virtually identical to the substance of the controversy raised by Mr Jones in the Jones proceeding. Furthermore, the definition of the relevant group in this proceeding is identical to the definition of the relevant group in the Jones proceeding. The group members were defined in both proceedings as those persons who obtained an interest in ordinary shares in TWE during the period from 17 August 2012 to 9.30 am on 15 July 2013 by the purchase of those shares on the financial market operated by Australian Securities Exchange Limited and who suffered loss and damage by reason of TWE's allegedly unlawful actions. 85 There is no doubt that the matters the subject of the Jones proceeding or which were raised in that proceeding are essentially the same matters which are the subject of this proceeding or which are raised in this proceeding. 86 Returning to cl 6.1(c)(i) and cl 6.1(c)(ii), the next phrase which must be considered is the phrase "in relation to". This phrase operates as the connecting mechanism between the "matters" referred to in each of those subclauses and the "claims" which are caught by those subclauses. 87 The expression "in relation to" is an expression of wide import designed to catch things which have a sufficient nexus to the subject matter under consideration. The sufficiency of the nexus is dependent upon the context. In the end, it is a question of degree. There must be some association which is both relevant and appropriate. Although the interpretation of the phrase "in relation to" which I have summarised in the last sentence is derived from cases dealing with the use of the phrase in a statutory context (in particular, see Travelex Ltd v Commissioner of Taxation of the Commonwealth of Australia (2010) 241 CLR 510 at 519-520 [25]-[27] per French CJ and Hayne JJ and at 533-534 [90]-[91] and at 537 [105] per Crennan and Bell JJ; and PMT Partners Pty Ltd (In Liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 313 per Brennan CJ and Gaudron and McHugh JJ and at 330-331 per Toohey and Gummow JJ), the observations of the High Court to which I have referred are nonetheless apt in assisting me to determine the meaning of the expression in the present case. 88 The releases provided by TWE in favour of Mr Jones and the group members in the Jones proceeding (including, as I have said, MCI) are from claims which have a sufficient connection to the subject matter of the Jones proceeding. 89 If I look to that subject matter and to the context in which the releases by TWE were given in the Settlement Deed, is TWE's present claim for costs in this proceeding a "claim in relation to the matters the subject of the Jones proceeding or raised in the Jones proceeding" and thus a claim which was released by TWE when it agreed to cl 6.1(c) and cl 6.2 of the Settlement Deed and consented to the making of the Approval Orders? 90 In Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112 (Grant), the majority (Dixon CJ and Fullagar, Kitto and Taylor JJ) said (at 123-124): The replication clearly enough depends upon a construction of the release which confines it to the subject matter of the disputes between the H.C. Grant and W.A. Grant families which the recital says they resolved to settle on the terms and conditions contained in the deed. The principle relied upon is that adopted by the common law long ago for the restriction of wide general words in a release of obligations, viz. that the general words of a release should be restrained by the particular occasion: Knight v. Cole [(1690) 3 Lev. 273 [83 E.R. 686]]. Thus the general words of a release are to be restrained by the particular recital: Payler v. Homersham [(1815) 4 M. & S. 423 [105 E.R. 890]]. As it is concisely expressed by Best J. in Lampon v. Corke [(1822) 5 B. & Ald. 606, at p. 611 [106 E.R. 1312, at p.1314]: "If there be introductory matter, that will qualify the general words of the release." The conclusion reached by the Supreme Court upon this replication means that even when the release clause in the deed is construed according to the foregoing principles the release is not necessarily confined to the disputes referred to in the particular recital. The correctness of this decision upon the first replication is brought before us by a cross-appeal on the part of the plaintiff. The second replication is based upon a different conception of the circumstances which should provide the means of restricting the generality of the release. It depends upon the simple allegation that there never at any material time was any dispute between the plaintiff and the defendant concerning the moneys claimed in or the subject matter of the suit. The difference between the two replications lies in the difference between controlling the general words by reference to the express recital and controlling them by reference to the disputes which existed between the actual releasor (in this case the plaintiff) and the releasee (the defendant). The principle which it is thus sought to apply was expressed by Lord Westbury in London & South Western Railway Co. v. Blackmore [(1870) L.R. 4 H.L. 610] as follows: "The general words in a release are limited always to that thing or those things which were specially in the contemplation of the parties at the time when the release was given" [(1870) L.R. 4 H.L., at p.623]. It was expressed by Taunton J. in Upton v. Upton [(1832) Dow. P.C. 400; 36 R.R. 817] in this way: " … the general words of a release may be limited by the particular matter out of which the release springs and the particular intent of the parties by whom the release is executed [(1832) Dow. P.C., at p.406: 36 R.R., at p.821]". 91 The majority in Grant went on (at 123-124) to observe that there is also an equitable principle which prevents the unconscientious reliance upon the general words of a release by restricting those general words "… to that thing or those things which were specially in the contemplation of the parties at the time when the release was given". See also the observations of the majority at 129-130 where, amongst other things, their Honours said (at 130): It may at once be conceded that there may be cases where the reasons for precluding the defendants from relying upon the release go to validity of the contract or where it would not be in accordance with the principles of equity to deny to the defendant his legal right under the release except as part of a rescission of the whole transaction. But they are cases depending on mistake, failure in a duty of disclosure, misrepresentation or other ground of avoidance. They are not cases depending on the equity to have the general words of a release confined to the true purpose of the transaction ascertained from the scope of the instrument and the external circumstances. 92 These notions have underpinned the law as to the interpretation of deeds of release for a long time. See, for example, Morrison RJA and Goolden HJ (eds), Norton RF: A Treatise on Deeds (2nd Ed, 1928 (Reprinted 1981)) at 208-210 of the 2nd Ed. 93 The parties to the Deed of Settlement specifically addressed the way in which the costs of the Jones proceeding were to be dealt with. All orders for costs which had been made in that proceeding prior to 12 September 2017 were to be vacated and the proceeding was ultimately to be dismissed upon the basis that there were to be no orders as to the costs thereof (cl 5.2(c)). The costs incurred by Mr Jones were to be compensated for as part of the Settlement Sum, that sum being a costs inclusive payment. See, in particular, the definition of "Jones' Costs" in cl 1.1 and the terms of cl 4.1(b). In effect, Mr Jones and TWE were obliged to pay their own costs of the Jones proceeding. 94 The Recitals in the Settlement Deed confine the subject matter of that Deed to the settlement of the Jones proceeding. 95 In any event, although this proceeding was, for all intents and purposes, defunct by July 2017, at the date when the parties settled the Jones proceeding, TWE had not made nor foreshadowed a general claim for costs in this proceeding. That claim came much later - at the end of 2018. For all the parties to the Settlement Deed knew, such a claim might never be made. 96 Taking into account the matters to which I have referred at [87]-[95] above, I think that neither Mr Jones nor TWE had in contemplation as at 12 September 2017, when they executed the Settlement Deed, that the releases given by TWE in cl 6.1(c) should cover what was then, at best, a possible future claim against MCI for the costs of this proceeding. The text of cl 6.1(c)(ii) does not specifically mention costs and is appropriately confined to substantive claims for substantive remedies. While the text of cl 6.1(c)(i) might cover costs, as a category of claim caught by that clause, it must be remembered that the costs of the Jones proceeding were specifically dealt with elsewhere in the Settlement Deed. The terms of the Recitals in the Settlement Deed do not support the proposition that cl 6.1(c)(i) was intended, by its very general language, to encompass TWE's present claim for costs in this proceeding. 97 Clause 6.1(c) was probably inserted in the Settlement Deed for more abundant caution in order to ensure that TWE could not make any substantive claims in the future against Mr Jones or the group members arising out of the matters raised in the Jones proceeding. Clause 6.1(c)(i) might cover a claim for costs by TWE against Mr Jones and the group members in the Jones proceeding, although that prospect is far from certain. 98 TWE's present claim for costs does not have a sufficient connection to the subject matter of the Jones proceeding to bring it within the scope of the releases provided by TWE in cl 6.1(c) of the Settlement Deed. That claim has only been possible as a result of the permanent stay which I granted on 5 July 2016 and as a result of the other events which occurred thereafter in relation to MCI's attempts to overturn my decision. TWE's present claim for costs does not arise from any adjudication by the Court in relation to the substantive claims made by Mr Jones in the Jones proceeding or from any agreement made between the parties to that proceeding. Nor does it follow from any claim made by TWE in the Jones proceeding. 99 Clause 6.2 uses slightly different language to describe the scope of the plea in bar provided therein. The bar is to "… any claim … in respect of any claim arising out of or related in any way to the matters …" the subject of the Jones proceeding. A plea in bar is a pleading which may legitimately be propounded as a complete answer to a claim. 100 MCI submitted that, in the case of claims by TWE, cl 6.2 covered a wider set of matters than those covered by cl 6.1(c). It submitted that its right to rely upon cl 6.2 was not dependent upon the Court being satisfied that the cl 6.1(c) releases were operative in relation to any particular claim under consideration. 101 I do not accept MCI's submissions to this effect. I think that the parties to the Settlement Deed intended that cl 6.2 would specifically authorise a plea in bar to those claims which had been released pursuant to the Settlement Deed, that is to say, those claims released pursuant to cl 6.1. The particular clause in the Settlement Deed which specified the terms of the releases to be given by the various parties to that Deed was cl 6.1. All that cl 6.2 was intended to do was to make clear that, in circumstances where the cl 6.1 releases had become operative, a party to the Settlement Deed (and certain others, including group members) could plead the releases in bar to such claims. That which was specifically authorised by cl 6.2 to be pleaded in bar was "… this Deed". That which is contemplated as being the subject of that plea is the releases in cl 6.1. I do not agree with MCI that the scope of the plea in bar provision in cl 6.2 is different from and wider than the scope of the releases provided for in cl 6.1 nor do I agree that cl 6.2 itself constitutes a separate and broader release than the releases specified in cl 6.1. 102 I am not persuaded that MCI's submissions based upon the existence of the County Court proceeding, the issues raised therein or the circumstances in which that proceeding was settled (as to which, see [52(k)] above) have any relevance to the present dispute between the parties. 103 Nor do I think that the authorities relied upon by MCI in support of the proposition that there is a settled view that releases provided as part of a settlement of class action proceedings should be construed broadly (Harrison v Sandhurst Trustees Ltd and Caason Investments Pty Ltd v Cao (No 2)), support such an unqualified proposition. Each release must be construed according to its terms in the circumstances in which it was given.

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