Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd

Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd - [2019] FCA 1458 - FCA 2019 case summary — Zoe

[20]

The primary judge's reasoning 3 The matter before the primary judge was TWE's interlocutory application seeking an order for costs of the proceeding. The primary judge explained that the proceeding had been stayed on 5 July 2016 consequential on his reasons for judgment published on the same day, Melbourne City Investments Pty Ltd v Treasury Wine Estates Limited [2016] FCA 787; (2016) 243 FCR 474 (MCI No 1). At that time, TWE had not applied for costs of the proceeding generally, its application being limited to costs of its interlocutory application for the stay. The orders made on 5 July 2016, accordingly, were in these terms: 1. This proceeding be permanently stayed as an abuse of the process of the Court. 2. The plaintiff pay the defendant's costs of and incidental to the Interlocutory Application filed by the defendant in this proceeding on 31 March 2015. 4 By an interlocutory application filed on 21 November 2018, TWE claimed orders that: 1. The Applicant pay the Respondent's costs of the proceeding, including the costs of this application and any reserved costs. 2. The Applicant pay the Respondent's costs of this application on an indemnity basis. 3. Pursuant to rule 40.02(b) of the Federal Court Rules 2011 (Cth) the Applicant pay the Respondent's costs of the proceeding, including any reserved costs, on a lump sum basis in lieu of taxation. 4. Pursuant to rule 40.05(b) of the Federal Court Rules 2011 (Cth) the Applicant pay the Respondent's costs of Supreme Court of Victoria proceeding S Cl 2014 06831, including any reserved costs, on a lump sum basis in lieu of taxation. 5 The primary judge agreed to first determine TWE's entitlement to claim costs given MCI's contention that it was precluded from so doing by the terms of a deed of settlement in another proceeding. The primary judge explained the genesis of this argument at [10] in these terms: (a) On 2 July 2014, Brian Jones commenced a proceeding in the New South Wales District Registry of the Court pursuant to Pt IVA of the Federal Court of Australia Act 1976 (Cth) (FCA Act) against TWE (Proceeding NSD 660 of 2014 (the Jones proceeding)). (b) In the Jones proceeding, Mr Jones made substantially the same claims against TWE as had been made by MCI in the first MCI proceeding commenced in the Supreme Court of Victoria in 2013 and as were repeated in this proceeding. The chronology of the relevant events is explained at 476-478 [1]-[10] and at 479-480 [14]-[23] of MCI No 1. Mr Jones also relied upon essentially the same causes of action as were relied upon by MCI in the two sets of proceedings brought by it against TWE. (c) At all relevant times, MCI was a group member in the Jones proceeding. At one point in time, MCI contended that, because it had applied to vary the opt out orders made by the Court in the Jones proceeding on 23 March 2017 and had notified its intention to opt out of that proceeding if its application to vary those opt out orders was unsuccessful, it had ceased to be a group member in the Jones proceeding. It argued that, by April 2017, it was no longer a group member in the Jones proceeding. That contention was ultimately abandoned. In the circumstances which I shall describe later in these Reasons, in late June 2018, MCI and TWE expressly agreed that MCI was, as at that date, a group member for the purposes of the Jones proceeding and was, for that reason, bound by the Settlement Deed referred to in subpar (d) below. (d) On or around 12 September 2017, the parties to the Jones proceeding reached a settlement of that proceeding. On that day, a Deed of Settlement giving effect to that settlement was entered into (Settlement Deed). The parties to that Settlement Deed were Mr Jones, TWE, Maurice Blackburn Pty Ltd and IMF Bentham Limited. The group members in the Jones proceeding (other than Mr Jones) were not signatories to the Settlement Deed nor were they directly involved in the settlement negotiations which led to the settlement embodied in the Settlement Deed. (e) On 10 November 2017, I made orders in the Jones proceeding approving the settlement and addressing certain other consequential matters. I shall refer to these orders as "the Approval Orders". (f) Upon the true construction of cl 6 of the Settlement Deed, which provided for the release of certain claims as between the parties to the Deed and their related parties and which created an entitlement in those parties and certain other specified persons and entities (including group members as defined in the Jones proceeding) to plead the Settlement Deed in bar to certain claims that might be brought by one or more parties to the Deed against other parties to the Deed and as a consequence of the making of the Approval Orders, TWE was precluded from maintaining its present claim for costs either because that claim was released by the operation of cl 6 of the Settlement Deed and/or because MCI was entitled to plead the Settlement Deed in bar to TWE's present claim for costs. 6 The primary judge recorded as part of the relevant background that: (1) MCI had commenced a proceeding in the Supreme Court of Victoria in 2014 which was transferred to this Court. (2) On 23 March 2018, MCI commenced a proceeding against TWE in the County Court of Victoria (CI-18-01215) (the County Court proceeding). (3) MCI's allegation in both proceedings were substantially the same as the allegations made by Mr Jones in the Jones proceeding. (4) On 9 July 2018, MCI discontinued the County Court proceeding upon the basis that each party bear its own costs of that proceeding. 7 The primary judge noted the provisions of the Settlement Deed of the Jones proceeding. 8 The recitals were: 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. 9 Clause 2.1 concerned the settlement payment. As the primary judge noted at [32], 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. 10 At [37] the primary judge recorded that by cl 5.2(c) of the Settlement Deed, the parties agreed that Mr Jones should apply to the Court for approval orders including 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. The primary judge made the orders contemplated by the Settlement Deed on approval of the settlement on 16 August 2018 that: (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. 11 Clause 6 is the critical provision on which MCI relied. To the extent relevant it provided that: 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; … 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. 12 It will be recalled that that Proceeding is defined in the recitals to the Settlement Deed as the Jones proceeding. 13 MCI, a Group Member of the Jones proceeding, contended that because the clams it had made in its proceeding fell squarely within cll 6.1(b)(ii), 6.1(b)(iii) and 6.2 of the Settlement Deed, the present claim for costs of TWE in this proceeding was also the subject of releases given by TWE in cl 6.1(c) of the Settlement Deed and the plea in bar provision in cl 6.2. 14 The primary judge rejected MCI's contention. He characterised the issue as one of construction of cl 6 of the Settlement Deed. He observed at [76] that a common concept to the relevant provisions was the language "…matters which are the subject of [the Jones proceeding] or which are raised in that proceeding". He said at [80] that 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. He concluded at [85] that there was no doubt that the subject of the Jones proceeding or matters which were raised in that proceeding, were essentially the same matters which are the subject of this proceeding or which are raised in this proceeding. 15 At [89] the primary judge posed the question: 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? 16 His Honour referred to Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112 at 123-124 to the effect that the "the general words of a release should be restrained by the particular occasion". The primary judge then noted: (1) The parties to the Settlement Deed specifically addressed the way in which the costs of the Jones proceeding were to be dealt with. (2) The Recitals in the Settlement Deed confine the subject matter of that Deed to the settlement of the Jones proceeding. (3) This proceeding was, for all intents and purposes, defunct by July 2017, and 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. (4) For all the parties to the Settlement Deed knew, such a claim (that is, by TWE for the costs of this proceeding) might never be made. 17 Taking into account these matters the primary judge said at [96]: …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. 18 At [98] his Honour said: 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. 19 The primary judge rejected MCI's contention that the plea in bar provision, cl 6.2, was broader than the releases in cl 6.1. His Honour also said at [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.

[21]

The competency of the appeal 20 MCI submitted that the judgment concerns the question of liability and a decision will be final if it determines liability with only quantification remaining, referring to decisions dealing with liability for damages Hall v Busst (1960) 104 CLR 206 at 218 and City of Camberwell v Camberwell Shopping Centre Pty Ltd [1994] 1 VR 163 at 174. 21 TWE's submissions provide a complete answer to these contentions. 22 First, order 1 is interlocutory in form as it deals only with the defendant's costs "to date". 23 Second, numerous authorities in this Court establish that a costs order is interlocutory. In Merit Protection Commission v Nonnenmacher [1999] FCA 274; (1999) 86 FCR 112 the Full Court noted that until the costs had been taxed, the costs order could be varied and was clearly interlocutory: [19] and [20]. In Rickus v Motor Trades Association of Australia Superannuation Fund Pty Limited [2010] FCAFC 16 at [101] the Full Court applied Merit Protection, holding that the costs order in that matter was interlocutory. In Kyriackou v Australian Securities and Investments Commission [2010] FCA 253 it was held that an order that there be no order as to costs was interlocutory, applying Rickus. In Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; (2017) 256 FCR 306, the Full Court held that the costs order was interlocutory because it did not finally dispose of the substantive rights of the parties: at [67]. TWE also referred to decisions to the same effect in Ashby v Slipper [2016] FCAFC 63; (2016) 241 FCR 55 at [36], Umoona Tjutagku Health Service Aboriginal Corporation (ICN 7460) v Walsh [2017] FCA 1587 at [5], Rahman v Lombe [2018] FCA 457 at [15], and Young v Wyllie [2010] FCA 1098 at [5]. 24 Third, there is no analogy between an order for costs which does not determine any substantive rights and an order for damages which remain to be assessed. The latter finally disposes of the substantive rights of the parties whereas an order for costs does not dispose of substantive rights at all. 25 Fourth, the fact that the only issue decided by the primary judge was one of construction of the Settlement Deed does not change the character of the order from interlocutory to final. The order did not determine any substantive rights of the parties. The order remains a discretionary order for costs: c.f. City of Camberwell at 174. 26 Fifth, as [106] of the primary judge's reasons disclose, it was contemplated that the order could be varied which confirms the status of the order as interlocutory. 27 TWE's submissions are compelling. The appeal is incompetent and must be dismissed with costs.

[22]

The application for leave to appeal 28 TWE opposed the grant of leave to appeal on the basis that the primary judge's decision was not attended by sufficient doubt to justify the grant of leave, having regard to the fact that proposed appeal is in respect of a discretionary costs order where particular caution in the grant of leave is appropriate: Klemweb Nominees Pty Ltd (as trustee for the Klemweb Superannuation Fund) v BHP Group Limited [2019] FCAFC 107 at [13] and Nationwide News Pty Limited v Rush [2018] FCAFC 70 at [4]. In the latter case Lee J referred to: …the principle which emerges from the oft-cited warning of Jordan CJ in In re the Will of F. B. Gilbert (Deceased) (1946) 46 SR (NSW) 318 at 323, that if a tight rein is not kept upon the interference with orders of judges at first instance in the exercise of discretion on a point of practice and procedure, the result will be "disastrous to the proper administration of justice". 29 TWE's primary argument against the grant of leave was that none of the appeal grounds challenged what it characterised as the primary judge's essential conclusion at [98] that TWE's claim for costs did not have a sufficient connection to subject matter of the Jones proceedings to bring it within the scope of the releases provided by TWE in cl 6.1(c) of the Settlement Deed. According to TWE, the other matters to which the primary judge referred in his reasoning, and which MCI challenged, were all peripheral to its essential conclusion. 30 While I agree that the primary judge's conclusion at [98] is central, I am not as certain as TWE that the balance of the primary judge's reasoning may be dismissed as merely peripheral. It is at least arguable that the conclusion which his Honour reached in [98] followed on from his Honour's earlier reasoning which MCI seeks to impugn. On that basis, the proposed grounds of appeal must be considered to assess whether the decision is attended by sufficient doubt to warrant its reconsideration on appeal. MCI submitted that supposing the decision to be wrong there would be substantial injustice to it as it would not then be exposed to a costs order, the Settlement Deed operating to bar any such claim by TWE. TWE submitted to the contrary as there is no evidence of the quantum of the costs payable and the order overlaps with other existing costs orders. I am prepared to infer that there will be substantial injustice to MCI supposing the primary judge to be wrong as proposed by MCI. 31 Ground 1 concerns the inference the primary judge drew at [96] 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". According to MCI, this had to be proved by evidence. No inference should have been drawn in TWE's favour when it called no evidence of the matters which were within its contemplation: Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 419, Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 at [63], Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345 at [250]. None of those cases, however, dictate that an adverse inference must be drawn against a party who could have called evidence about a relevant issue but did not do so. Further, and of relevance to the present case, TWE did not rely on its intention as the legal basis for construction of the releases in the Settlement Deed. It relied on the terms of the deed and the circumstances in which it was making its claim for costs, as summarised by the primary judge at [53]. Given this, there was no occasion for TWE to adduce evidence of its intention. I am not persuaded that the only available inference was to the contrary of that drawn by the primary judge. His Honour identified a range of objective circumstances which supported the inference. I also do not accept that TWE's cost claim was anything other than as the primary judge described as at best a possible future claim at the time of the Settlement Deed. It is also unclear how this conclusion affected, if it did at all, the primary judge's construction of the releases at [98]. Proposed ground 1 does not leave me with an impression of sufficient doubt to justify the grant of leave to appeal. 32 Ground 2 is to the effect that the primary judge failed to consider all of the rules relevant to the construction of a deed of release, referring to Karam v ANZ Banking Group Limited [2001] NSWSC 709 at [406] where Santow J said: (1) In construing a release, here embodied in a letter of variation to the terms of lending, the Court should ascribe to the release the meaning that the release would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties at the time that they signed the document containing the release: ICS v West Bromwich BS [1998] 1 All ER 98 per Lord Hoffman at 114. (2) ... (3) Consistent with this emphasis on intention, general words in a release are limited to what was specifically in the contemplation of the parties at the time when the release was given: Grant v John Grant and Sons (1954) 91 CLR 112 per Dixon CJ, Fullagar, Kitto and Taylor JJ; Iletrait Pty Limited v McInnes (NSWCA, 17 April 1997, unreported) per Priestley JA with whom Grove AJA and Handley JA agreed). (4) Although there are no special rules of construction, such as a contra proferentem requirement, in the absence of clear language courts have been slow to infer that a party intended to surrender rights and claims of which it was unaware and could not have been aware: BCCL v Ali [2001] 1 All ER961 at 966 per Lord Bingham, (contrast Lord Nicholls in BCCL v Ali (supra) at 971-72 who was of the view that for the purposes of construction a general release is simply a term in the contract). (5) Although each release should be considered against its own matrix of facts, an example of this line of "cautionary principle" (Lord Bingham's phrase) is the frequently cited judgment of the High Court of Australia in Grant v John Grant & Sons Pty Limited (supra), where Dixon CJ, Fullagar, Kitto and Taylor JJ (at 125) referred with approval to the proposition put by Sir Frederick Pollock in his "Principles of Contract" (Stevens: London, 1950) 13th ed at 412, that "in equity a release shall not be construed as applying to something of which the party executing it was ignorant." 33 According to MCI, the primary judge applied principle (3) but not principles (1), (4) and (5). The costs orders already made in the proceedings were matters of public record. TWE was aware of them as it was a party. Given these circumstances and the broad language of the release in favour of group members, MCI submitted that the application of principle (1) would have led the primary judge to the opposite conclusion from that reached by the simple application of principle (3). This, said MCI, was reinforced by principles (4) and (5). TWE said the failure to consider these principles, which would have led to the opposite result, involved error. 34 I am not persuaded that these submissions give rise to sufficient doubt about the correctness of the primary judge's decision. The fact that it may be taken TWE, and perhaps even Mr Jones, knew of the costs orders in this proceeding does not take the matter anywhere. As the primary judge said, they could not have known of TWE's further costs application which had not been made at the time of the Settlement Deed. At that time, TWE's further costs application was nothing more than a possible future claim, particularly given the existing costs orders in TWE's favour in this proceeding. TWE was not bound to call evidence of its intention at the time of the entry into the Settlement Deed and the primary judge was not bound to draw an adverse inference against TWE for not doing so in these circumstances. 35 Accordingly, principle (1) is nothing more than neutral in the analysis. The releases were not drafted against the background of an extant undetermined costs application by TWE in this proceeding. Principles (4) and (5) do not add weight to MCI's argument. They are concerned with matters of which a party was unaware. In the present case, from the perspective of both TWE and Mr Jones, there was no outstanding costs application by TWE in this proceeding. This was the background against which the primary judge construed the releases, consistently with all of the principles in Karam. 36 The fact that the primary judge found, as is the case, that the costs of the Jones proceedings were dealt with specifically, outside of cl 6, does not support MCI's approach to the construction of the Settlement Deed. As the primary judge found, this fact tended against any inference that the parties had in mind TWE's possible future claim for costs in this proceeding when entering into the Settlement Deed. 37 Accordingly, ground 2 also does not give rise to sufficient doubt about the correctness of the primary judge's decision such as to warrant its reconsideration on appeal. 38 Grounds 3 and 4 do not assist. The primary judge was right that Harrison v Sandhurst Trustees Ltd [2011] FCA 541 and Caason Investments Pty Ltd v Cao (No 2) [2018] FCA 527 do not stand for the proposition that releases in the settlement of class actions must be construed broadly. The primary judge's observation at [103] that each release must be construed according to its terms in the circumstances in which it was given is orthodox. Nothing in the reasons suggests his Honour did anything other than apply this orthodox principle to reach a conclusion which accorded with the actual terms of the releases themselves. The problem with MCI's proposed principle that the settlement of a class action should be construed as releasing all possible claims arising from the proceeding, is that TWE's claim for costs in this proceeding does not arise in any way from the Jones proceeding. The primary judge's observation to this effect at [98] is unassailable. As his Honour there said, TWE's claim does not arise from any adjudication in relation to the substantive claims made in the Jones proceedings or from those claims themselves. Rather, TWE's claim arose from the permanent stay of this proceeding. 39 The contention of inadequate reasons at [103] cannot be sustained. The primary judge said what needed to be said. He rejected MCI's reliance on authorities to support an unqualified proposition about construction of releases in the settlement of class actions. Nothing more needed to be said than that the cases cited did not support the unqualified principle stated. 40 Nothing in the primary judge's reasons gives rise to the existence of a sufficient doubt about the correctness of the decision so as to justify its reconsideration on appeal. The application for an extension of time and for leave to appeal should be dismissed with costs. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.

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