Plaintiff v Defendants

1 The plaintiff is a unitholder in the MG Unit Trust and brings this group proceeding pursuant to Part 4A of the Supreme Court Act 1986.

2 As the pleadings currently stand, this proceeding is brought by the plaintiff as trustee for the Elcar Pty Ltd Super Fund Trust and on behalf of persons who purchased units in the MG Unit Trust pursuant to the product disclosure statement issued by the second defendant, MG Responsible Entity Limited as Responsible Entity of the MG Unit Trust, and dated 29 May 2015 and/or 3 July 2015 and prior to 29 February 2016, and held any of those units at the commencement of trading on 27 April 2016.

3 On 28 April 2017, the Australian Competition and Consumer Commission ("the ACCC") commenced proceedings by Originating Application filed in the Federal Court of Australia (No VID430/2017) on that day against Murray Goulburn Co-operative Co Limited, its former Managing Director and its former Chief Financial Officer alleging unconscionable conduct and misleading or deceptive conduct in connection with Murray Goulburn's financial year 2016 financial forecasts ("the ACCC proceeding"). Details of this claim by the ACCC are set out in the Originating Application.

4 The plaintiff applied to this Court for an order pursuant to s 5(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 for this proceeding to be transferred to the Federal Court of Australia. In support of this application, the plaintiff filed an affidavit by Mr Mark Elliott, sworn 8 May 2017 ("the Elliott affidavit"), deposing to the nature of the proceeding in this Court and the ACCC proceeding. Mr Elliott also filed an affidavit, sworn 1 May 2017, exhibiting a copy of the Originating Application filed in the Federal Court of Australia.

5 The defendants did not oppose the application but, rather, informed the Court of their agreement and submitted that it was appropriately brought under the provisions of s 1337H of the Corporations Act 2001, rather than under the cross-vesting legislation. This was on the basis that the proceeding in this Court is "a proceeding with respect to a civil matter arising under the Corporations legislation for the purposes of s 1337H(1)(a)(i) of the Corporations Act". The plaintiff responded, and in my view correctly, accepting this position and agreeing that the application should proceed under the Corporations Act provisions, rather than under the Jurisdiction of Courts (Cross-vesting) Act provisions.

6 The parties provided proposed orders by consent on 9 May 2017. On this basis, I made orders transferring this proceeding to the Federal Court of Australia under the Corporations Act provisions, indicating that, having regard to the importance of this proceeding, I would provide short reasons for adopting this course. A copy of these Orders is contained in the Annexure to these reasons.

7 The relevant provisions of the Corporations Act, given their applicability having regard to the provisions of sub-s 1337H(1)(a)(i), are sub-s 1337H(2) and s 1337L.

8 Section 1337H(2) provides for the circumstances empowering transfer, as follows:

(2) Subject to subsections (3), (4) and (5), if it appears to the transferor court that, having regard to the interests of justice, it is more appropriate for:

(a) the relevant proceeding; or

(b) an application in the relevant proceeding;

to be determined by another court that has jurisdiction in the matters for determination in the relevant proceeding or application, the transferor court may transfer the relevant proceeding or application to that other court.

9 Section 1337L makes provision for further matters for a court to consider when deciding whether to transfer a proceeding, as follows:

In deciding whether to transfer under section 1337H ... a proceeding or application, a court must have regard to:

(a) the principal place of business of any body corporate concerned in the proceeding or application; and

(b) the place or places where the events that are the subject of the proceeding or application took place; and

(c) the other courts that have jurisdiction to deal with the proceeding or application.

10 The overarching question to be answered in an application for transfer under either s 1337H(2) of the Corporations Act or sub-s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act is whether the transfer is appropriate having regard to the interests of justice. In this respect, the issues arising in an application under either set of legislative provisions is broadly similar, as discussed and explained by Debelle J in Re Dstore Ltd (recs and mgrs apptd) (in liq); Dwyer v Hindal Corporate Pty Ltd:[1]

1. Notwithstanding that they are expressed in different terms, the issues for consideration on an application under s 1337H are, broadly speaking, the same as those which must be considered on an application to transfer proceedings made pursuant to s 5 (2) (b) (iii) of the Jurisdiction of Courts (Cross-vesting) Acts 1987 of the states and territories. Although para (iii) of s 5 (2) (b) differs from paras (i) and (ii) of that subsection in that it does not expressly require the transferor court to consider the more appropriate forum, that is what para (iii) requires. The reasons are explained by Rogers A-JA in Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 730; 90 ALR 407 at 425. It is now well established that the terms of para (iii) of s 5 (2) (b) of the Cross-vesting legislation of the states and territories require the transferor court to determine what is the more appropriate forum and that it is not necessary that the transferor court be a "clearly inappropriate" forum: BHP Billiton v Schultz (2004) 211 ALR 523; [2004] HCA 61 per Gleeson CJ, McHugh and Heydon JJ at [14], per Gummow J with whom Hayne J agreed at [42] and [69]. In Bankinvest, Rogers A-JA applied the reasoning of Lord Goff in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 at 478; [1986] 3 All ER 843 and identified the task as being to determine the more natural forum, that is to say, the forum with which the action had the most real and substantial connection. Lord Goff continued:

So it is for the connecting factors in this sense that the court must look; and these will include not only factors affecting convenience or expense (such as availability of witnesses), but also other factors such as the law governing the relevant transaction (as to which see Crédit Chimique v James Scott Engineering Group Ltd [1982] SLT 131), and the places where the parties respectively reside or carry on business.

In Spiliada at 464 Lord Templeman identified the factors which the court is entitled to take into account as "legion". The principles in Bankinvest have been consistently applied: see Mason P in James Hardie & Co Pty Ltd v Barry [2000] NSWCA 353; (2000) 50 NSWLR 357 at 377; [2000] NSWCA 353 and the cases and other references there cited. As I understand them, the reasons of the High Court in BHP Billiton v Schultz affirmed this approach: see Gleeson CJ, McHugh and Heydon JJ at [14] - [17], Gummow J with whom Hayne J agreed at [76] - [77], Kirby J at [163] - [165] and Callinan J at [258] - [259].

1. However, there is one important difference between para (iii) of s 5 (2) (b) and s 1337H. In the case of s 5 (2) (b) (iii), if the transferor court is satisfied that it is in the interests of justice that proceedings be transferred to another court as the more appropriate court, the court has no alternative but to transfer the proceedings: BHP Billiton Ltd v Schultz at [14], [63], and [169]. No question of discretion arises. However, under s 1337H (2), even if another court is the more appropriate forum, the transferor court retains a discretion whether to transfer the proceedings. That is apparent from the use of the word "may" in the concluding words of s 1337H (2).

11 The relevant principles under the cross-vesting legislation were considered by the High Court of Australia in BHP Billiton Ltd v Schultz,[2] and since that decision there have been a number of decisions in this Court where the relevant applicable principles have been considered.[3] On the basis of the High Court decision in BHP Billiton and the subsequent decisions of this Court in relation to the applicable principles, Robson J provided a comprehensive summary of these principles in Irwin v State of Queensland.[4] It is not, however, necessary to set those principles out or to consider aspects of them in detail, having regard to the provisions of s 1337L of the Corporations Act, which require the Court to have regard to the matters specified in that section when deciding whether to transfer a proceeding. Having regard to the position that the issues for consideration on an application under either set of legislative provisions are broadly similar, it follows, in my view, that the relevant principles as summarised by Robson J are equally applicable in the present circumstances as matters in addition to but subject to the matters which s 1337L of the Corporations Act directs as matters to be taken into account. In this respect it is, of course, necessary to allow for the position that the power to exercise the jurisdiction under the cross-vesting legislation is not a discretionary power but a mandatory obligation as distinct from the position under the Corporations legislation.

12 I turn now, more specifically, to the broader consideration, what, in this context is in "the interests of justice".

13 Robson J, in Irwin v State of Queensland, stated in the summary of relevant principles that:[5]

The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so, the interests of the respective parties, which might in some respects be common (as for example cost and efficiency) and in other respects conflicting, arise for consideration.

14 Debelle J, in Dwyer v Hindal Corporate Pty Ltd, explored the meaning of the expression, "the interests of justice", in more detail:[6]

1. The expression "the interests of justice" is to be interpreted broadly. That is apparent from the very terms of the expression and that interpretation of the expression has been repeatedly re-affirmed. In Acton Engineering Pty Ltd v Campbell [1991] FCA 469; (1991) 31 FCR 1; 103 ALR 437; 6 ACSR 149 the Full Court of the Federal Court was considering s 44 of the Corporations Act 1990 of the states and territories which was then in very similar terms to s 1337H. Section 44 (3) was in similar terms to s 1337L. In that decision, Black CJ said (at FCR 3; ALR 440) that the expression "the interests of justice" will allow a wide range of considerations to be taken into account in deciding whether it is more appropriate for a proceeding to be determined in another court. He said,

The expression 'the interests of justice' is a broad one. Section 44(3) requires a court to have regard to the matters it specifies but it does not thereby limit the range of matters that fall for consideration under s 44(2). Rather, s 44(3) recognises that, Australia being a large country with widely dispersed main centres of population, it is necessary to have regard to practical connections between a proceeding, or an application in a proceeding, and a particular part or parts of Australia to see where the interests of justice lie when deciding whether another court is a more appropriate court to determine the matter. Section 44 certainly does not deny the relevance of existing proceedings in other courts in the same or a related matter. These may, depending upon the circumstances, be of great importance in determining whether or not to transfer, but the section does not single out such considerations for special treatment.

Although the court was then dealing with s 44 of the Corporation Acts of each of the states and territories, the comments apply with equal force to s 1337H. In the same case, Davies J said (at FCR 4; ALR 441 - 442; ACSR 151) that the expression enables all relevant factors to be taken into account. They included:

• matters relating to the efficiency of litigation which in turn include its economy and expedition;
• matters of convenience having regard to the location of witnesses and records; and
• matters of policy relating to the administration of justice by the Federal Court and the state and territory Supreme Courts.

Plainly, the matters listed in s 1337L are also relevant to a determination of what the interests of justice require.

1. Before leaving the question of what is meant by the expression "the interests of justice", it is appropriate to refer to the remarks of Wilcox J in Bourke v State of New South Wales (1988) 22 FCR 378 at 394; 85 ALR 61 at 77:

Under that rubric, as it seems to me, the court is entitled to consider not only the ability of a particular court to deal with all aspects of a matter, and to make and to enforce all the orders to which a party may be entitled, but also adjectival matters such as the availability of particular evidence, the procedures to be adopted, the desirable venue for trial and the likely hearing date. It is not in 'the interests of justice' to adopt a course, in relation to those matters, which places unnecessary burdens and delays upon the parties to litigation.

Those remarks have since been consistently applied and affirmed. They are to the same force and effect as the remarks of Black CJ and Davies J in Acton Engineering.

Debelle J also considered other aspects of the meaning of the expression "the interests of justice" with respect to substantive procedural law issues, the balance of convenience to parties and witnesses, and convenience to the court system.[7]

15 Depending on the particular circumstances, it is likely that issues with respect to "the interests of justice" are likely to be thrown into sharper focus where an application for transfer is contested. However, that is not the present circumstance, but this does not detract from the requirement that the Court exercise a discretion under s 1337H and, in that context, that it have regard to the matters specified in s 1337L.

16 This proceeding and the ACCC proceeding in the Federal Court of Australia are both concerned, among other things, with the financial year 2016 financial forecasts of Murray Goulburn Co-operative Limited and public representations made in respect of those forecasts. The overlaps between this proceeding and the ACCC proceeding as to matters said to be critical are described in the Elliott affidavit as follows:[8]

(a) allegations concerning the decline in relevant commodity prices and forecast commodity prices for FY2016 at the time of the publication of the PDS on 29 May 2015 and thereafter;

(b) allegations that Murray Goulburn Co-operative Co Limited did not disclose information concerning the effect of declining commodity prices and forecasts and the consequential effect upon the Final Farmgate Milk Price (FMP) for FY2016 until 29 February 2016 and 27 April 2016;

(c) allegations that Murray Goulburn Co-operative Co Limited and its chief executive officer, Mr Gary Helou, knew prior to 29 February 2016 and 27 April 2016 that the forecast Final 2016 FMP was overstated and likely to prove wrong;

(d) allegations that certain representations made by Murray Goulburn Co-operative Limited in the period prior to 29 February 2016 were inconsistent with facts known to Murray Goulburn; and

(e) allegations of misleading or deceptive conduct arising out of the matters described above.

17 The Elliott affidavit also contains a comparative analysis of the allegations made in this proceeding and the ACCC proceeding, an analysis which is helpfully set out:

PLAINTIFF'S COMPARISON OF ALLEGATIONS MADE IN THIS PROCEEDING ("CLASS ACTION") AND ACCC PROCEEDING

Introductory note:

The similarities between the Class Action and the ACCC proceeding concern Murray Goulburn's conduct in the period up to 27 April 2016.

The ACCC's allegations focus upon the forecast Final FMP represented to Farmers at different times prior to 27 April 2016. Representations concerning the final FMP, as the critical integer in the calculation of distributions to unitholders, are at the core of the analogous claim made in the Class Action that MG did not comply with its continuous disclosure obligations in the period from listing on the ASX to 27 April 2016.

While no allegation is made concerning the prospectus given to Farmers in the ACCC proceeding, allegations are made concerning the decline in commodity prices and forecast commodity prices in the period prior to the issuance of the PDS on 29 May 2015 which are common to each proceeding.

No allegation is made in relation to the MSSP or the FY2016 financial accounts in the ACCC proceeding, and there is no commonality of issues in this regard.

Congruent or similar allegations:

Proposed Further Amended Statement of Claim

[7] - allegation that between 1 May and 24 June 2015 that auction prices for dairy commodities declined and sources of expert opinion relied upon by MG lowered their forecast commodity prices for FY16.

[22] - allegation that the forecasts in the PDS published on 29 May 2015 in respect of the defendant's revenue for FY2015 and FY2016 were unlikely to be achieved, including as a result of lower commodity prices (the forecasts were unchanged from those published in the prospectus on 1 May 2015 referred to in the Concise Statement).

[25] - allegation that the PDS was not up to date at the time it was given, including due to the decline in selling prices to which MG was exposed and the affect upon forecasts for FY2015 and FY2016.

[8] - allegation that MG chose not to revise its forecast Final FMP before the start of FY16, which in turn caused it to set the Opening Price too high. Allegation that MG on 24 June 2015 told Farmers that it had fixed the Opening Price for FY16 at $5.60 kg/ms.

[9] - allegation of forecast Final FMP of $6.05 kg/ms and no material risk factors to achieving a Final FMP of $6.05 kg/ms.

[10] - allegation did not withdraw, qualify or correct its representations to Farmers about the Opening Price between 24 June 2015 and 27 April 2016. Allegation that MG did not withdraw, qualify or correct its representations to Farmers about the Forecast Final FMP between 24 June 2015 and 29 February 2016, but made further reinforcing statements and that the representations continued during those respective periods.

[18] - despite MG's knowledge (referred to below), MG did not tell Farmers it had lowered its forecast of the Final FMP they would receive for FY16 until 29 February 2016.

[19] - MG represented that its Final FMP for FY16 would be $5.60 kg/ms.

[43] "Information Concerning the Misleading PDS FY2016 Representations" was not made generally available until the second defendant made it generally available by making announcements to the ASX on 29 February 2016 and 27 April 2016.

The term "Information Concerning the Misleading PDS FY2016 Representations" is defined at [40] to include inter alia that MG did not expect to achieve an Actual Weighted Average Southern Milk Region FMP in excess of $6.00 in FY2016.

[11]-[13] and [16]-[17] - allegations concerning MG's Helou's and Hingle's knowledge.

Allegations include:

(a) MG typically prepared internal Revised Income Forecasts (RIFs) each month, which forecast its Final FMP and profit for the financial year based on actual sales for the year to date and forecast sales for the balance of the year: [11]

(b) Helou and Hingle were involved in approving RIFs, then presenting them to the board of directors of MG at monthly meetings (other than July 2015, January and March 2016 when no RIFs were presented): [11]

(c) The presentation of RIFs to the Board provided MG with an opportunity, each month, to determine whether to amend its forecast Final FMP: [11]

(d) At all times until late April 2016, the RIFs did not support MG's ongoing representations about its forecast Final FMP [11]

(e) RIFs disclosed low, mid and high cases, where the mid case represented the most likely Final FMP [12]

(f) The Final FMPs forecast in August 2015 were inconsistent with published forecasts and the RIF was nonetheless based on "inappropriate and/or unreasonable assumptions concerning forecast commodity prices and he successful achievement of initiatives and sales targets developed after the budget for FY16 had been finalised". [13]

(g) "between September 2015 and February 2016 (inclusive) ... Helou and Hingle approved and presented to the Board RIFs that did not support a Final FMP of $6.05 as the most likely outcome for FY16": [16]

(h) "each of these RIFs was based on inappropriate and/or unreasonable assumptions concerning forecast commodity prices and/or the successful achievement of initiatives and sales targets. Helou and Hingle knew this and, in approving and presenting these RIFs, knowingly overstated the range of potential FMP that Farmers would receive."

[42] allegation that on each day between 3 July 2015 (the day on which the units in the MGUT were listed on the ASX) and 29 February 2016 or alternatively 27 April 2016 the first and second defendants were aware that certain information (Information Concerning the Misleading PDS FY2016 Representations) existed but had not been disclosed to the market as required by law.

Allegation depends on the existence of systems and knowledge as a result of the operation of those systems. There is particularisation of those systems and the defendants' knowledge in the Concise Statement.

[14]-[15] - allegations of representations being made by MG that were inconsistent with MG's actual knowledge and which continued to represent the state of affairs disclosed on 24 June 2016 (being the confirmation of forecast Final FMP) up to and including at the Annual General Meeting on 26 October 2015 and in presentations to Farmers in December 2015, and that MG did not withdraw, qualify or corrects those representations before 29 February 2016 and they therefore continued through that period.

[45] - allegations that representations made in the period from 24 June 2016 until 26 October 2015 were misleading or deceptive because they did not disclose any Information Correcting the Misleading PDS FY2016 Representations.

[19], [21] - allegations concerning the content of the disclosures made on 29 February 2016 and 27 April 2016.

[38]-[39] - allegations concerning the content of corrective disclosures made on 29 February 2016 and 27 April 2016.

[25] - MG engaged in misleading or deceptive conduct in contravention of s 18(1) of the Australian Consumer Law.

[45] - allegation of misleading or deceptive conduct in breach of s 1041H of the Corporations Act 2001 (Cth) in relation to publications which did not disclose any Information Correcting the Misleading PDS FY 2016 Representations.

18 The Elliott affidavit also deposes to other matters which are relevant in the present context:[9]

1. Given that the ACCC proceeding will be subject to expedited case management and having regard to the overlaps between the allegations in the class action and the ACCC proceeding, there is a risk that if the class action and the ACCC proceeding continue in different courts and are not case managed together (even if not tried together) there is a real risk inconsistent decisions may be delivered in the two proceedings.
2. If the class action and the ACCC proceeding continue in different courts there is also a real prospect that an undue burden will be placed on the respective courts' resources and upon the resources of Murray Goulburn Co-operative Co Limited and Mr Gary Helou (the common defendants) by the undertaking of interlocutory processes in different courts.
3. Given the ACCC's superior position to the class action plaintiff in having had access to Murray Goulburn Co-operative Co Limited's internal documents and the documents referred to in the concise statement filed in the ACCC proceeding, it may also be inferred that certain interlocutory processes which may otherwise occur if this proceeding remains in this Court would not occur if this proceeding is transferred to the Federal Court of Australia. Chief amongst these are the defendants' summary judgment and strike-out applications.
4. The transfer of the class action to the Federal Court of Australia is submitted to be in the interests of justice, efficiency, cost-efficiency and group members in that the transfer resolves the prospective difficulties of inconsistent decisions and undue burden on the courts and defendants should the class action proceeding continue in the Supreme Court of Victoria while the ACCC proceeding continues in the Federal Court of Australia.

I do not take these matters to be indicative of any view that efficient case management has not been and would not be applied to this proceeding in this Court but, rather, emphasising the particular nature and aspects of the ACCC proceeding and its likely expedited progress in the Federal Court of Australia as that affects this proceeding.

19 Returning to the matters to be taken into account as mandated by s 1337L, I am satisfied, on the basis of the material to which reference has been made, that the matters specified in those provisions, as set out in paragraphs (a), (b) and (c) each answer in favour of the application. Moreover, having regard to the nature of proceedings in this Court and the ACCC proceedings and the other matters to which reference has been made in the preceding reasons, their efficient management and the application of procedural fairness to all concerned requires, in my view, that both sets of proceedings be managed and heard in the one court. Additionally, it is reasonable to suppose that substantive and procedural efficiencies will flow from both proceedings being managed and heard in one court, and that this position will avoid the most undesirable possibility of different findings of fact and law being made in separate courts. In my view, efficient and expeditious management of the two proceedings in the same court and the consequent ability to avoid inconsistent findings in the two proceedings is in "the interests of justice" in the present circumstances.

20 An additional consideration is that as this Court does not have jurisdiction with respect to remedies available on application of the ACCC as "regulator" under sections 246, 247 or 248 of the Australian Consumer Law the Federal Court of Australia is the only court with jurisdiction to hear and determine all aspects of both proceedings. Moreover, the provisions of Part 4A of the Supreme Court Act pursuant to which the proceeding in this Court is brought are relevantly the same as the provisions of Part IVA of the Federal Court of Australia Act 1976. It follows that, regardless of which set of "class action" legislative provisions are ultimately applied to the proceedings transferred from this Court, any resultant transition will be "seamless". It should be emphasised that this is a transfer of proceedings at the progress point that has been reached in this Court. It is not a process that involves commencement of these proceedings afresh in another court, with all the cost and delay which may flow from that position.

21 For the preceding reasons, the application for transfer of this proceeding to the Federal Court of Australia satisfies the requirements of ss 1337H and 1337L of the Corporations Act and this is the basis for the making of orders to this effect on 9 May 2017.

1. This proceeding is transferred to the Federal Court of Australia (Victorian District Registry) pursuant to section 1337H of the Corporations Act 2001 (Cth).
2. Pursuant to Rule 13.07 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008, the Prothonotary shall send to the Federal Court of Australia all documents filed and all orders made in the proceeding.
3. Costs be reserved.

MURRAY GOULBURN CO-OPERATIVE CO LIMITED First defendant

RESPONSIBLE ENTITY OF THE MG UNIT TRUST Second defendant

[1] [2005] SASC 24; (2005) 52 ACSR 335 at 338-339 [13]-[4].

[2] [2004] HCA 61; (2004) 221 CLR 400.

[3] Ewins v BHP Billiton Limited [2005] VSC 4; Hall v Australian Finance Direct Ltd [2005] VSC 306; Slater & Gordon Pty Ltd v Porteus [2005] VSC 398; McLeod v Munro [2005] VSC 375; Simpson v Francke [2006] VSC 200; Holt v Rorehan [2006] VSC 148; Eden v Amaca Pty Ltd [2007] VSC 374; Kellow v Irish Murphy's Pty Ltd [2010] VSC 239; Lloyd v Riverland Regional Health Services Inc [2010] VSC 350; and Irwin v State of Queensland.

[4] [2011] VSC 291 at [14].

[5] [2011] VSC 291 at [14], referring to BHP Billiton Limited v Schultz [2004] HCA 61; (2004) 221 CLR 400 [15].

[6] [2005] SASC 24; (2005) 52 ACSR 335 at 339-40 [16]-[7].

[7] See Dwyer v Hindal Corporate (2005) ACSR 335 at 340-341 [18]-[22].