Plaintiff v Defendants

2 By the day fixed for hearing, the plaintiff had filed affidavits of Robert Hamilton Downing, sworn 27 October 2009 and 9 November 2009, together with an affidavit of Ronald Gerard Williamson, sworn 11 December 2009. Timbercorp Finance had filed and served an affidavit of Kenneth Alexander Adams, sworn 4 December 2009, in opposition to the application. The plaintiff had filed an outline of submissions, as did Timbercorp Securities and Timbercorp Finance.

3 On 15 December 2009 Timbercorp Securities did not oppose the grant of leave but drew attention to 'difficulties' with the statement of claim which it submitted cast doubt on the existence of serious questions to be tried. It submitted that if leave were to be granted it ought to be made subject to three conditions. These were: (1) leave should be limited to issues of liability alone; (2) the claimant shall not be entitled to enforce a judgment without the leave of the court; and (3) liberty should be reserved to Timbercorp Securities to apply for the revocation of leave.

4 Timbercorp Finance also identified difficulties in the statement of claim but went further and opposed the grant of leave. As a consequence, the plaintiff sought an opportunity to review its pleading and the application was adjourned to 18 February 2010. On that day it was further adjourned to 2 March 2010. In the meantime the plaintiff repleaded its case against Timbercorp Securities and Timbercorp Finance. Many of the criticisms made by those defendants were addressed in the proposed new pleading. The plaintiff did not require leave to amend.

5 In addition to the affidavits mentioned above, Craig Peter Sheppard, a liquidator of Timbercorp Finance, filed and served an affidavit sworn 25 February 2010. Supplementary submissions were filed by the plaintiff and Timbercorp Finance. From the written and oral submissions it became apparent that the scope of the objection by Timbercorp Finance to the grant of leave had narrowed. A fair summary of the continuing objection by Timbercorp Finance is at paragraph 20 and 21 of its written submissions. It submitted:

Each and every claim made in the proposed Amended Group Statement of Claim incorporates, to some degree, scheme specific elements. None of the causes of action sought to be pleaded in the Amended Group Statement of Claim, however, are particularised by reference to any of the Plaintiff's Schemes or any of the other 30 schemes. The superficial appearance of commonality derives from the unsatisfactory level of generality in the pleading, even by group proceeding standards.

Accordingly, the Court cannot be satisfied that the claims of Group Members are in respect of, or arise out of, the same or related circumstances as is required by s 33C [of the Supreme Court Act 1986] (footnote omitted).

6 Section 33C of the Supreme Court Act 1986 (Vic) provides -

33C Commencement of proceeding

(1) Subject to this Part, if -

(a) seven or more persons have claims against the same person; and

(b) the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances; and

(c) the claims of all those persons give rise to a substantial common question of law or fact -

a proceeding may be commenced by one or more of those persons as representing some or all of them.

(2) A group proceeding may be commenced -

(a) whether or not the relief sought -

(i) is, or includes, equitable relief; or

(ii) consists of, or includes, damages; or

(iii) includes claims for damages that would require individual assessment; or

(iv) is the same for each person represented; and

(b) whether or not the proceeding -

(i) is concerned with separate contracts or transactions between the defendant and individual group members; or

(ii) involves separate acts or omissions of the defendant done or omitted to be done in relation to individual group members.

7 The narrow complaint made by Timbercorp Finance (and faintly echoed by Timbercorp Securities) was that a precondition to the entitlement to maintain a group proceeding had not been satisfied because it was not apparent from the pleading that the claims 'are in respect of, or arise out of the same or related circumstances' as required by s 33C(1)(b).

8 The amended statement of claim contained six substantive claims. I will adopt a useful summary of the claims set out in the written outline of submissions filed on behalf of Timbercorp Finance and acknowledged by the plaintiff as an accurate summary. Set out below is that summary:

Nature of claims against TFPL [Timbercorp Finance]

1. The Amended Group Statement of Claim now contains six substantive claims. Each of these claims is summarised below.

(i) Direct claims against TSL [Timbercorp Securities] and/or TFPL

(a) TSL owed scheme members statutory duties under s. 601FC(5) of the Corporations Act including by giving priority to scheme members' interests.

(b) By failing to inform scheme members of matters that may have materially affected, or were likely to materially affect, matters about which the scheme members had an interest in being informed, TSL preferred its commercial interest over the interests of scheme members and breached its statutory duties.

2.2 New - Misleading and deceptive - PDS and TFL Financial Representations - TSL/TFPL

(c) TSL's Product Disclosure Statement ("PDS") in respect of the schemes contained statements by which TSL represented that the financial circumstances of the Timbercorp Group were sufficiently strong that scheme investors could expect that TSL would continue to manage each relevant scheme throughout its term, and the principal risks associated with each relevant scheme were fully disclosed in each scheme's PDS ("PDS Financial Representations").

(d) The PDS Financial Representations were false and misleading "from around February 2007" in that (i) the financial circumstances of the Timbercorp Group were not sufficiently strong that investors could reasonably expect that TSL would be able to manage each relevant scheme throughout its intended term, and (ii) TSL failed to disclose "adverse matters" ("Adverse Matters") after each of those matters occurred and TSL thereby engaged in misleading or deceptive conduct.

(e) TFPL also made representations to the same effect as the PDS Representations by (i) allowing or authorising TSL to promote TFPL's financial services to scheme investors, and (ii) by offering to lend, and lending, monies to investors in schemes.

(f) These representations were also (i) ongoing and continuing representations because TFPL did not qualify, amend, or correct them and (ii) false and misleading and TFPL thereby also engaged in misleading or deceptive conduct.

2.3 New - Misleading and deceptive scheme contribution representations - TSL/TFPL

(g) TSL's PDSs contained statements regarding the initial and ongoing fees and costs of each scheme ("Scheme Contributions").

(h) By making the Scheme Contribution Statements and the PDS Financial Representations, TSL represented to scheme members in respect of each scheme, that (i) the scheme contributions equaled or exceeded the true costs of the establishment and ongoing management of that scheme, (ii) the scheme members' payment of the scheme contributions would be applied to fund the scheme, and (iii) the scheme contributions would be sufficient to fund the scheme ("TSL Scheme Contributions Representations").

(i) The TSL Scheme Contributions Representations were (i) ongoing and continuing representations because TSL did not qualify, amend, or correct them (ii) false and misleading and TSL thereby engaged in misleading or deceptive conduct.

(j) TFPL also made representations to the same effect as the TSL Scheme Contributions Representations. TFPL did so by (i) allowing or authorising TSL to promote TFPL's financial services to scheme investors, and (ii) by offering to lend, and lending, monies to investors in TSL schemes.

(k) These representations were also (i) ongoing and continuing representations because TFPL did not qualify, amend, or correct them and (ii) false and misleading and TFPL thereby also engaged in misleading or deceptive conduct.

2.4 Re-cast - Misleading and Deceptive Conduct by Silence - TSL/TFPL

(l) By failing to inform investors of certain matters, including the Adverse Matters prior to 23 April 2009 (when TSL went into administration), TSL impliedly represented to scheme members by its silence, that these matters had no material adverse impact upon various matters relating to the Timbercorp Group including its ability to manage any of the schemes through to their contemplated completion ("the Silence Representations") and engaged in misleading or deceptive conduct.

(m) By failing to also inform investors of the matters including the Adverse Matters by 23 April 2009, TFPL also impliedly made the Silence Representations, which were false, and engaged in misleading or deceptive conduct.

2.5 New - Misleading and deceptive - March 2008 Representations - TSL

(n) TSL's financial reports for each of the schemes in March 2008 contained declarations by the Directors to the effect that (i) there had been no significant changes in the schemes' affairs, and (ii) no matter or circumstance had arisen since the end of the financial year that had significantly affected the results of those operations or the state of affairs of the project in future financial years ("March 2008 Representations").

(o) By reason of some Adverse Matters, the March 2008 Representations were false and misleading and TSL engaged in misleading or deceptive conduct.

2.6 New - Misleading and deceptive conduct - September 2008 Representations - TSL

(p) TSL's financial reports for each of the schemes in September 2008 contained similar declarations by the Directors to those alleged to give rise to the March 2008 Representations ("September 2008 Representations").

(q) By reason of some Adverse Matters, the September 2008 Representations were false and misleading and TSL engaged in misleading or deceptive conduct.

(ii) Indirect claims against TFPL - vicarious and/or accessorial liability

1. In addition to the direct claims put against TFPL set out above, the Amended Group Statement of Claim also pleads that TFPL is liable for contraventions by TSL.
2. The first mechanism employed, which is entirely new, is described in the pleading as "Vicarious Liability", such that the conduct of the Directors and TSL is deemed to be TFPL's conduct by the operation of various statutory provisions.
3. The second mechanism, which has been re-cast, is accessorial liability, in that it is alleged that TFPL was "knowingly concerned" in (and thus liable in respect of) each of TSL's:

(b) the Silence Representations, the March 2008 Representations and the September 2008 Representations (footnotes omitted).

9 Timbercorp Finance submitted that there were 33 managed investment schemes, including the plaintiff's schemes, falling within the definition of 'the schemes' in the statement of claim. Each scheme had unique attributes that may have a material bearing upon issues such as reliance, causation, conduct by silence and the materiality of the so-called 'adverse matters' to the members of the different schemes. A helpful spreadsheet has been prepared by Timbercorp Finance in which the documentation relating to five schemes was compared. They were the 2007 Timbercorp Almond Scheme PDS; the 2007/2008 Timbercorp (Single Payment) Timber Lot Project PDS; the 2008 Timbercorp Olive Project PDS; the 2002 Timbercorp Olive Project Prospectus; and the 1997 Timbercorp Eucalyptus Project Prospectus. The spreadsheet was designed to, and did, reveal differences between the schemes in terms of duration, structure and contribution obligation. It also revealed different approaches adopted in scheme documentation to the identification and explanation of risk factors. Thus, it is not difficult to understand that different issues may arise as between members of the group and the defendants concerning reliance, the environment in which a failure to disclose information may be regarded as misleading or deceptive, causation and damages.

10 Timbercorp Finance submitted that if there was to be a group proceeding it should be confined only to those who invested in the plaintiff's schemes, or additional sub-group representatives, who invested in each of the remaining schemes, should be joined as plaintiffs so that all claims in respect of all schemes can be properly agitated in the group proceeding. It also proposed that any leave should be conditional upon a requirement that no judgment be enforced without leave of the court.

11 Timbercorp Securities sought the additional conditions foreshadowed in its written submissions filed in anticipation of the hearing of 15 December 2009. It proposed that there be a condition confining leave to questions of liability. That proposal was not shared by Timbercorp Finance or the plaintiff. It was common ground that if leave were to be granted it should be subject to the usual condition that leave of the court would be required before the execution of any judgment. It was also common ground that the court retained the power in appropriate circumstances to revoke leave.

12 There is no doubt that the requirement of 'related circumstances' is a threshold requirement.[1] In Zhang v Minister for Immigration, Local Government and Ethnic Affairs, French J (as he then was) said,[2]

The outer limits of eligibility for participation in representative proceedings are defined by reference to claims in respect of or arising out of related circumstances. The word ``related'' suggests a connection wider than identity or similarity. In each case there is a threshold judgment on whether the similarities or relationships between circumstances giving rise to each claim are sufficient to merit their grouping as a representative proceeding. At the margins, these will be practical judgments informed by the policy and purpose of the legislation. At some point along the spectrum of possible classes of claim, the relationship between the circumstances of each claim will be incapable of definition at a sufficient level of particularity, or too tenuous or remote to attract the application of the legislation.

13 In Guglielmin v Trescowthick (No 2) Mansfield J said,[3]

Part IVA of the Act, by which representative proceedings can be brought, was inserted into the Act by the Federal Court of Australia Amendment Act 1991 (Cth) (the Amendment Act) and commenced its operation on 5 March 1992. The purpose of the Amendment Act, as explained in the Second Reading Speech, is twofold. Firstly, Pt IVA is designed to provide a real remedy in situations where many people are affected and the total amount in issue is significant, but each person's loss is small and not economically viable to recover in individual actions. The second purpose of the Amendment Act is to deal with the situation where the damages sought by each claimant are large enough to justify individual actions and where there are a large number of claimants (for instance shareholders or investors). Rather than having a large number of similar actions, the mechanism of representative proceedings was designed to allow for a more efficient process. The Second Reading Speech, and the Amendment Act, appear to be based largely on the conclusions of The Law Reform Commission, Grouped Proceedings in the Federal Court, Report No 46, Canberra 1988 (LRC Report). Not all of the LRC Report recommendations were adopted in the Amendment Act.

...

The applicant submitted that the focus should be upon matters of commonality rather than matters of difference. I think it would be erroneous to focus only on the similarities in the claims of group members without regard to the differences in their claims and the complexity of their claims. Part IVA indicates the circumstances in which a representative action may be commenced, and its provisions must be applied. Nevertheless, as French J said in Zhang, the application of those provisions may involve 'practical judgments informed by the policy and purpose of the legislation'. The policy and purpose of Pt IVA of the Act is, in my view, reflected in the Second Reading Speech to which reference is made in [9] above.

In any representative proceeding there may well be differences between the positions of the various group members in respect of their claims against the respondents. That is likely to be the case whenever a complex representative action is instituted, that is a representative action involving a course of conduct rather than one transaction or piece of conduct or a representative action involving a large number of respondents. With an active mind, one could find a plethora of differences in any such representative proceeding. It is the nature of such proceedings that there are differences between the positions of the parties. That is why there is needed a relatedness of circumstances, rather than exactly the same circumstances, in the claims of the group members. Representative proceedings are not intended only to be available in the more straightforward of circumstances where the conduct of one respondent on one occasion is alleged to have resulted in loss to a number of persons.

In this matter I have come to the view that the claims of the group members are in respect of, or arise out of, similar or related circumstances. Their claims against all the respondents must (as I found above) relate to conduct of the respondents from 27 November 1998. Their claims against all the respondents involve either the acquisition of Holdings securities or the retention of Holdings securities after that date by reason of their reliance upon the alleged misrepresentations of the respondents about the state of affairs of Holdings. Each of the respondents is alleged to have been complicit in the making of those misrepresentations.

14 In Rod Investments (Vic) Pty Ltd v Clark (No 2),[4] Hansen J referred to the decision of Moore J in King v GIO Holdings Australia Ltd.[5] The facts of that case raised some of the same issues relied upon by Timbercorp Finance in its attempt to disqualify this case as one meeting the threshold requirements for a group proceeding. Hansen J said,[6]

This issue was considered by Moore J in King v GIO Holdings Australia Ltd. In that case the applicant commenced a representative proceeding in the Federal Court on behalf of himself and certain GIO shareholders, seeking damages and declarations against GIO, an adviser to GIO, and nine directors of GIO. In essence, the plaintiff claimed that the respondents had engaged in misleading and deceptive conduct by recommending that shareholders reject an offer by AMP to buy GIO shares during a takeover bid. The group members were defined as all persons who owned GIO shares in the relevant period and who did not accept the takeover offer by reason of the conduct "of all or any of the respondents" and who suffered loss as a consequence. The statement of claim included the following statement in particulars, namely that "the Applicant and the group members relied upon one or more of those representations by one or more of the Respondents". As to this pleading Moore J said:

"Several respondents pointed to this particular as indicating that the claims are not advanced on the basis that there was reliance on the representations of all respondents. The particulars contemplate that there may have been, on the part of the applicant and group members, reliance on representations of only one or some of the respondents giving rise to a claim for damages against one or some only. While this is so, it does not involve an abandonment of the claim that representations were made to the applicant and each group member and the contention on behalf of them that the making of the representations involved misleading or deceptive conduct and a breach of duty. The application remains one in which claims are made by the applicant and all the group members against each respondent.

Use of the format in the pleadings referred to in par 37 above is not, in my opinion, merely designed to establish common claims as a matter of form. The pleadings are intended to identify the claims of the applicant and members of the representative group. The respondents submitted, in various ways, that it is unlikely or improbable that the way the claims are pleaded reflect what is likely to have occurred even if the claims can be made out. That is, it is unlikely that all the 33,000 or so shareholders who have, according to the solicitors retained by the applicant, signified interest in the proceedings or all the 68,000 or so shareholders who declined to accept the offer would have appreciated that all the pleaded representations were made (which are the immediate source of alleged liability), and all the more so given that they are implied representations to be inferred, in part, from other implied representations, would have all acted on all of them in the way alleged or would all have suffered loss for the reasons alleged.

However that approach, in my view, invites speculation that is not, in the circumstances, justified. The present proceeding is, in this respect, far removed, in my opinion, from the situation considered in Philip Morris (Australia) Ltd v Nixon (supra) where the Full Court, and in particular Spender and Hill JJ, were satisfied that the case pleaded, which plainly was cast in the widest of terms as to time, the impugned conduct and the consequences of that conduct, sought to raise claims that could not satisfy the requirements of s 33C(1)(c). The position of the respondents in this proceeding is, at best, akin to the situation described by the Full Court in Femcare Ltd v Bright [2000] FCA 512 at para 93 of a respondent being able to establish only uncertainty as to whether the claims of all group members will be made out against each respondent. In this respect, the description of the representative group referred to in par 8 above serves to limit the group on whose behalf the proceeding is brought to those who suffered loss as a result of the conduct of all or any of the respondents. This description allows for the possibility, perhaps to the ultimate benefit of some respondents ... that the claims might not succeed in their entirety against all respondents. However by adopting that description, the character of the claims themselves as formulated is not, in my opinion, altered. The description of the class in this way does not govern and qualify the terms on which the orders are sought in the application nor the terms on which the claims are pleaded and relief sought." (emphasis added)

I respectfully agree with the above observations of his Honour, which have not been criticised in any of the later cases. Further, the nature of the pleading issue raised in King is for all intents and purposes the same as the issue raised here. That is, claims for damages and declarations are made by each group member ostensibly against each defendant, although the defendants raise the possibility that the claims will not be made out against each defendant. It seems to me that central to his Honour's reasoning is a distinction between the claims which the group members have, as evidenced on the face of the pleadings, and the relief to which individual group members may ultimately be found to be entitled. In my view the distinction is valid and flows from the terms of s 33C read in context.

As to this, I note that the authorities make clear that the word "claim" in s 33C(1)(a) should not be given a narrow, technical meaning; see Finance Sector Union of Australia v Commonwealth Bank of Australia, Bray and King. Certainly the term is broader than a cause of action or the relief to which a litigant is ultimately held to be entitled. In this case, as in King, the mere possibility (however strongly arguable) that the claim for damages of some group members may not ultimately be made out against each defendant does not alter the fact, discerned from the face of the pleading, that the plaintiff and each group member have claims for damages against each defendant. As Moore J pointed out, the defendants' argument is based on speculation as to what may occur rather than the actual claims made on the pleadings. Further, the plaintiff's proposed group definition confines the group members to those persons who actually suffered loss in reliance on the relevant conduct of one or more defendants.

...

As to whether s 33C(1)(b) and (c) are satisfied, in my view the claims of the plaintiff and all the group members are in respect of, or arise out of, the same, similar or related circumstances and give rise to a substantial common question of law or fact. I do not overlook the defendants' submission that the alleged misrepresentations were made by nine different defendants in a variety of circumstances over a period of some four years. Nor do I overlook the likelihood that distinct issues of causation will arise in the claims of individual group members, which will require resolution on a case by case basis, if the case proceeds that far. But there is nothing remarkable about that. Part 4A specifically provides that a group proceeding may be commenced whether or not the relief sought includes claims for damages requiring individual assessment, or is the same for each person represented, and whether or not the proceeding is concerned with separate transactions between the defendant and individual group members or involves separate acts or omissions of the defendant done or omitted to be done in relation to individual group members.

In Williams v FAI Home Security Pty Ltd (No 2) Goldberg J said that:

"Although there may be differences between the actual terms of the statements made to the various group members that is not a bar to the proceeding continuing as a representative proceeding. So long as there is a substantial common issue of law or fact, that is to say an issue which is real or of substance, then s 33C(1)(c) of the Act is satisfied: Wong v Silkfield Pty Ltd. It is no bar to such a representative proceeding that the claim is brought in respect of representations founded in different conversations made to different members of the class. The threshold criterion is satisfied if the representations, albeit not in the same terms, are directed to substantially the same matters."

I respectfully agree with his Honour (footnotes omitted).

15 The pleading now proposed to be advanced by the plaintiff alleges a range of conduct by the defendants which transcends the differentiating features of the various schemes. That is not to deny the possibility that the scheme documentation and the experience of individual investors will differ in material respects. It may become desirable, even necessary, to identify and join some additional sub-group plaintiffs.

16 The plaintiff alleges that Timbercorp Securities and Timbercorp Finance were controlled by their directors as part of a single group engaged in a common enterprise. That enterprise involved the creation and marketing of managed investment schemes. Those schemes were amenable to regulation under the Corporations Act. The plaintiff alleges that the defendants engaged in conduct, by representations and silence, that was misleading or deceptive and in breach of various statutory duties, or that they were vicariously liable or liable as accessories for the breaches. As pleaded, the allegations have broad reach, extending to the members of the defined group notwithstanding the differences between schemes. The plaintiff acknowledged that on the question of reliance and loss and damage differences will emerge. That is inevitable. But the plaintiff's allegation of common issues of fact and law are confined and do not extend as yet to matters which may be uniquely individual. The existence of such individual issues arising in a group proceeding is no impediment to such a proceeding. The claims of all persons in the group are in respect of or arise out of related circumstances. Section 33C(2) contemplates that damages may require individual assessment and that the proceedings may concern separate transactions or involve separate acts or omissions. In my opinion the claim falls within the requirements for a group proceeding under Part 4A.

17 Objection to the grant of leave to proceed was based upon the failure of the proceeding to satisfy the requirements of s 33C. Having been persuaded that the proceeding satisfied those requirements, I am persuaded that leave should be granted subject to the usual condition that no claimant shall enforce any judgment for the payment of money, including costs that may be obtained against Timbercorp Securities or Timbercorp Finance, without the leave of the court.

TIMBERCORP SECURITIES LIMITED (ACN 092 311 469)(IN LIQUIDATION)

TIMBERCORP FINANCE PTY LTD (ACN 054 581 190)(IN LIQUIDATION)

[1] Wong v Silkfield Pty Ltd [1999] HCA 48; (1999) 199 CLR 255, [28].

[2] [1993] FCA 489; (1993) 45 FCR 384, 404.

[3] [2005] FCA 138, [9], [47-9].

[4] [2006] VSC 342 ('Rod Investments (No 2)').

[5] [2000] FCA 617; (2000) 100 FCR 209.

[6] Rod Investments (No 2) [2006] VSC 342, [43-5], [52-3].