BHP Group Limited v Impiombato & Anor [2022] HCATrans 124 (9 August 2022)

Last Updated: 15 August 2022

[2022] HCATrans 124

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M12 of 2022

B e t w e e n -

BHP GROUP LIMITED

Appellant

and

VINCE IMPIOMBATO

First Respondent

KLEMWEB NOMINEES PTY LTD (AS TRUSTEE FOR THE KLEMWEB SUPERANNUATION FUND)

Second Respondent

KIEFEL CJ
GAGELER J
GORDON J
EDELMAN J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON TUESDAY, 9 AUGUST 2022, AT 10.00 AM

Copyright in the High Court of Australia

MS W.A. HARRIS, QC: If the Court pleases, I appear in that matter on behalf of the appellant with my learned friend, MS J.E. MOIR. (instructed by Herbert Smith Freehills)

MR J.T. GLEESON, SC: May it please the Court. I appear with MR A.D. POUND, SC and MS E. LEVINE for the respondents. (instructed by Phi Finney McDonald and Maurice Blackburn Lawyers)

KIEFEL CJ: The record will show that Justice Gageler is sitting remotely. Yes, Ms Harris.

MS HARRIS: If the Court pleases. The role of Part IVA of the of the Federal Court of Australia Act is to expand the universe of persons whose claims may be adjudicated by the Federal Court whose rights may be bindingly affected and indeed extinguished by such adjudication, whether they are aware of it or not. Part IVA legislates centrally with respect to those persons whom it defines as group members. The question in this proceeding is and was: on a proper construction of the legislation, having regard to the common law and statutory constructional norms on which we rely, who may be nominated by a representative party as a group member, and thereby subjected to the court’s adjudication and the provisions of Part IVA? Anyone in the world, or persons within the Territory. Perhaps, self-evidently, that question is not answered in the circular fashion adopted by the Full Court embraced by the respondents, namely, anyone with a claim potentially subject to the subject matter jurisdiction of the Federal Court.

Can I commence by taking the Court to the provisions of Part IVA, which is at the third – at third line in the index, page 164. Part IVA consistently distinguishes between representative parties, as the persons who submit themselves to the jurisdiction of the court and group members, who are the passive and potentially unknowing subjects of the court’s adjudication. As we will see, it is group members that are the central concern of Part IVA. The first provision is section 33A, at page 164, and it proffers two relevant definitions. The first is:

group member means a member of a group of persons on whose behalf a representative proceeding has been commenced.

The second – used in contradistinction – is:

representative party –

That is, the:

person who commences a presentative proceeding.

Sections 33C and 33D, on the next page, then engage with the definition of “group member” by identifying the persons who can be a representative party and the persons on whose behalf such a party can commence representative proceedings.

Section 33E, on the next page, provides that no consent is required for a person to be a group member. Moving to section 33H, on the next page, section 33H requires the representative party, on the one hand, to identify group members by description only in its application to the Court. That provision is important when we come to section 33ZB and the description of group members may be altered pursuant to section 33K.

Section 33J is concerned with the right of group members to opt out. That provision critically engages with sections 33X and 33Y, which are found at pages 174 and 175. These provisions provide for the occasion and manner in which notices must be given to group members – including with respect to the commencement of the proceeding, their rights to opt out and any application for approval of a settlement which, by force of section 33ZB, would bind them and, effectively, extinguish any claims of theirs, pursued on their behalf, in the proceeding. Can I ask the Court to note section 33Y(4), which provides a suggestion with regard to the publication of the notice? It says:

An order under subsection (3) may require that notice be given by means of press advertisement, radio or television broadcast, or by any other means.

That is more relevant, one would suggest, of the legislative focus on local distribution rather than international distribution. Section 33Z and section 33ZA empower the Court to make an award of damages for group members and to make orders facilitating distribution to group members, including establishment by a group member of his or her entitlement to a share of the damages. Section 33ZB, on page 178, is critical. It provides:

A judgment given in a representative proceeding:

(a) must describe or otherwise identify the group members who will be affected by it; and

(b) binds all such persons –

being group members:

other than any person who has opted out of the proceeding under section 33J.

Now this section assumes particular significance in the context of
this case. It is essential to the operation of the Part and has been repeatedly so described by members of the Federal Court. It is essential to the implementation of the policy to which the Part seeks to give effect.

While the respondent may be required to meet the claims of persons not before the Court, section 33Z seeks to ensure finality and certainty by erecting what has been described in this Court as a statutory estoppel. The provision is of significance here because, while the statutory estoppel it erects is effective within Australia, it is much less likely to be effective outside.

Group members are not required to submit to the jurisdiction of the Court and, indeed, the respondents in this case, at paragraph 34 of their submissions, quite properly concede that section 33ZB cannot operate, so that the judgment of the Federal Court would bar proceedings outside Australia in a foreign court. And we will come back to this point.

Now, other provisions follow in the Part, including 33ZE, page 181, which tolls the limitation period applicable to any group member to which the proceeding relates. So, Part IVA is a comprehensive suite of provisions ‑ ‑ ‑

GORDON J: Ms Harris have you finished your dealing with those provisions, or do you propose to come back to them?

MS HARRIS: I was not, your Honour.

GORDON J: Could I just ask one question about the construction that you have just proffered? Group member is defined, as you have pointed out, to be:

a member of a group of persons –

and the persons to whom it applies are those set out in section 33C. At some point could you just explain to me on your construction how you end up with, as I understand it, two different meanings to the word “person” in 33C?

MS HARRIS: I will come to it, your Honour. It is one of the things that our learned friends rely on as saying the presumption is displaced. The short answer, so I do not keep your Honour waiting, is that the legislation distinguishes between a person who is a representative party and a person who is a group member, and a person who is a representative party submits themselves to the jurisdiction of the Federal Court and thereby comes into the Territory in a way in which a non‑resident group member does not.

GORDON J: Is that right for the purposes of 33C(1)(a), (b) and (c) where it is talking about:

7 or more persons have claims against the same person –

I mean, on your construction, you have read one as having some territorial limit and the other not.

MS HARRIS: The first thing I do, your Honour, is read it subject to 33A.

GORDON J: But 33A just picks up by reference to “group member” those people that are in 33C, does it not?

MS HARRIS: Indeed, it divides them into two categories, and the legislation does that very thing, it divides persons into two categories. So, “person” is not used in a uniform sense throughout the legislation, it is used in category one with respect to the representative party. That person is a representative party, and then there was another group of persons who are group members, and the legislation is clear in its intra‑territorial operation with respect to a representative party.

GORDON J: I assume you will come to this as well, but for my part I would like you to explain how it is that that is the right starting point given Mobil? In a sense, that if you read Mobil it may suggest that what you start with is the jurisdiction of the Federal Court, and the jurisdiction which is provided by reference to the 150 statutes picking up section 77 of the Constitution and therefore 75 and 76 may, in effect, provide the lens through which you enter. I mean, this Court said, I think in Wigmans and also in BMW that Part IVA is procedural and not substantive, and so I wonder at some point whether you might also address that as well, please.

MS HARRIS: I think – your Honour can pick me up at the end if I have not done it justice, your Honour, that will be a central concern of our submissions because that is what is put against us, that once the jurisdiction of the Federal Court is invoked, that is the end of the matter, and that effectively pushes the presumption to one side. We will demonstrate for your Honour the fallacy in that reasoning, if your Honour pleases. I think this engages with your Honour’s point. To focus on the jurisdiction of the Court is not to focus on the right question for present purposes.

The question for present purposes is: who may be nominated as a group member? Which, of the persons in the world who have a claim, potentially, that is susceptible to the subject matter jurisdiction of the Federal Court, which persons in the world may be nominated as a group member? And that is where we say the presumptions come in. The presumptions are relevantly the common law presumption that says the persons, property and events in respect of which Parliament has legislated are limited to those in the territory over which it has jurisdiction. So, prima facie, this legislation operates with respect to persons within this jurisdiction. And I have ‑ ‑ ‑

EDELMAN J: So the presumption you are relying upon, this presumption against extraterritorial operations, that concerns which dimension of jurisdiction. Does it concern the geographic, the personal or the subject matter dimension of the jurisdiction?

MS HARRIS: Jurisdiction is fundamentally territorial. And, in fact, I think it was Lord Selborne who said all jurisdiction is territorial. And so, the distinction that we draw here, your Honour, is that territorial jurisdiction, which is fundamentally geographic.

EDELMAN J: Sorry. Jurisdiction is territorial, but it has dimensions. So, one dimension is the geographic dimension, which is, which territory does it operate over, another is which persons does it operate over, and another is which subject matter does it operate over. The presumption usually applies in circumstances where the subject matter dimension of jurisdiction is overseas; so, where you would not usually construe or interpret legislation as applying to a subject matter that is happening out of the jurisdiction or out of the country. But that is not this case. So, this case is only concerned, as I understand it, with the personal aspect of – or the personal dimension of jurisdiction.

MS HARRIS: And, your Honour, the personal aspect of jurisdiction has the geographic distinction that I have proffered. The cases to which I take your Honour – and one of the first ones will be Meyer Heine. The subject matter of that case was Australian. There was no overseas subject matter that was appropriated by the legislation in that case, and yet the presumption applied. The presumption applied to narrow, still, the operation of the statute so that it did not apply to acts done by persons outside the territory. The distinction is a geographic one, and here the legislation, on our learned friends’ construction, reaches outside Australia and into the territory of another sovereign or state.

EDELMAN J: But this is not – it does not do so in relation to acts done outside the territory of Australia. It does so only in relation to persons who are outside the territory of Australia.

MS HARRIS: Indeed, your Honour, and it affects their rights. It reaches into the sovereign territory of another state and purports to affect the rights of persons there resident.

EDELMAN J: But that is what we have service out rules for.

MS HARRIS: But that is the point, your Honour. There is no service out on group members. And the reason ‑ ‑ ‑

GORDON J: That is a different question, though. This is the issue. If you are looking at challenging – as I understand the way you have put it – this sort of extra‑territorial reach, you have got to go back to the reach about the rights created by the statutes giving the Court jurisdiction.

MS HARRIS: It did.

GORDON J: It is the way in which Kay’s Leasing looks at it – it says, I have got legislative power – does the legislation which gives me these rights within power. You do not challenge any of that. Now we are looking at the mechanism to bring those rights within the Federal Court jurisdiction. They are given to the Federal Court, and these are procedures to make those able to be heard and determined.

MS HARRIS: Your Honour, they are two separate things.

GORDON J: They are two separate things ‑ ‑ ‑

MS HARRIS: So, the first ‑ ‑ ‑

GORDON J: ‑ ‑ ‑my concern is, you have merged them.

MS HARRIS: No, our friends merged them, your Honour. I am concerned to keep them quite distinct. The first question is, is legislative competence. That is not challenged here. Your Honour is right. There is no question that if the legislature here chose to legislate so as to reach in and affect the rights of persons in the UK, it could do so.

GORDON J: And it does in this sense: if the conduct is such – which is what Justice Edelman is putting to you – where the acts involve someone overseas but give rise to rights in Australia – and they do all the time – then they have got a right to bring an action in the Federal Court.

MS HARRIS: But they do not. But they do not bring an action in the Federal Court, and that is the very point that we make. The only person who brings an action in the Federal Court is the representative party. So, your Honour is perfectly right with respect to representative parties. That is why there is no question here about the reach of the term “representative party” because that person chooses to incept a claim, chooses to invoke the personal and subject matter jurisdiction of the Federal Court. This is the elision that is attempted by our learned friends and which we need to be very careful about. No group member is a party to these proceedings – no group member. No group member has come into the jurisdiction to submit to the jurisdiction to submit to the jurisdiction of the Federal Court. No group member is someone over whom the Federal Court would otherwise enjoy person jurisdiction but for Part IVA.

STEWARD J: Ms Harris, can I ask you a question, just to understand the detail of your argument. What sufficient connection to territory must a person have in order to be an eligible group member?

MS HARRIS: So, “connection to territory” is a term that is assayed by our learned friends and it is a slightly dangerous one for this reason, your Honour, because it tends to merge the question of constitutional competence with territorial operation. Insofar as we are concerned with territorial operation, the territorial discrimen, we say, is residence. That is the most convenient ‑ ‑ ‑

STEWARD J: What is your definition of “residence”?

MS HARRIS: “Residence” ‑ ‑ ‑

STEWARD J: Bearing in mind that there is more than one.

MS HARRIS: It is true, your Honour. Again, I was going to come to it – and I will. The question posited by the presumption is, what is inside the territory and what is outside the territory? That is the line to be drawn. What is inside and what is outside?

STEWARD J: So, just – I am sorry about the detail.

MS HARRIS: Not at all.

STEWARD J: Would someone who spent 183 days in the territory be someone, on your view, that is eligible to be a group member?

MS HARRIS: Well, that might be a question for the Court. But courts routinely determine who is a resident and who is not. And resident ‑ ‑ ‑

STEWARD J: They do by reference to statutory criteria or double tax treaty criteria. What is the criteria that we would use here?

MS HARRIS: Very often, the statute does not proffer a definition. And the concept of residence, your Honour – and I will come back to it, but the concept of residence, your Honour, was first used as a territorial discrimen – it might not have been the first use, but probably the most influential for present purposes, was first used as a territorial discrimen by Lord Justice James in Niboyet v Niboyet. Your Honour might recall that that was a case about whether the French consul and his wife could be subject to the UK Marriage Act. They were resident in the jurisdiction, but they were domiciled in France, and the argument was because they were domiciled in France, they could not be susceptible to that legislation, and it was their residence in the UK that ruled them in.

We apply exactly the same discrimen here, and I will give your Honours some references to various statutes which use the concept of residence without further elaboration. And it is used conventionally in legislation of this type as, again, we will come to Professor Mulheron in her article about the legislative choices that are made with respect to resident and non‑resident group members, refers to numerous pieces of group‑action legislation which uses “residence”, unadorned by any definition, as the criterion. But it is a concept which is well understood and conventionally applied.

But to fix on residence, which is our expression of the application of the presumption, should not be confused with what the presumption does. The job of the presumption is to secure the intra‑territorial operation of a statue unless the Parliament makes a contrary intention clear, either expressly or impliedly. And it sits next to a statutory expression of the same concept in section 21(1)(b) of the Acts Interpretation Act. It says:

In any Act:

. . .

(b) references to localities jurisdictions and other matters and things shall be construed as references to such . . . things in and of the Commonwealth.

Now, our learned friends say the presumptions are not engaged here. That proposition – as we read their written submissions, at least – depends on the first two sub‑propositions. The first is that they seek to confine the common law proposition to cases where, on a literal reading – and this, I think, picks up something your Honour Justice Edelman said to me, where, on a literal reading of the statute, the provisions would be inconsistent with comity of nations or established rules of international law. That is where it deals with subject matters over which some other sovereign properly exercises jurisdiction.

Now, that is too narrow a reading, but they deploy that approach for exactly the reason that your Honour Justice Gordon puts to me. They say this part – and, in fact, they only focus on one provision, namely 33C, but we are beholden to look at the entire Part. They say 33C is concerned with the institution of claims in the Federal Court, and that is not a matter over which some other sovereign properly has jurisdiction. Well, they are right that that is not a matter over which some other sovereign properly has jurisdiction, but that is to ignore the entire effect of Part IVA and the job that it does.

EDELMAN J: Is your submission about the presumption that the general rules of court in every State and Territory that provide for service out of the jurisdiction of process are necessary to rebut a presumption against extraterritorial operation of every piece of legislation?

MS HARRIS: No, your Honour.

EDELMAN J: So, those general rules of service out are not needed in case to make all other legislation operate in relation to persons that do not happen to be within the Territory?

MS HARRIS: Your Honour, the Federal Court enjoys jurisdiction over the applicants in this case because, whether resident in Australia or not, they came within the Territory, presence in the Territory, and submitted to the jurisdiction of the court by initiating process. It enjoys jurisdiction over the respondent not simply because the respondent is here but because the respondent appeared. So, this is important, your Honour. We are not just talking about subject matter jurisdiction, we are talking personal jurisdiction and ‑ ‑ ‑

EDELMAN J: Well, it depends what you mean by personal jurisdiction. I mean, do you mean, by “personal jurisdiction”, jurisdiction over persons or jurisdiction over subject matter or jurisdiction over Territory? I think you mean jurisdiction over persons, do you not?

MS HARRIS: The jurisdiction to adjudicate the claims of persons, and just because a court enjoys subject matter jurisdiction with respect to a claim does not give it jurisdiction to adjudicate that claim. Chief Justice Gleeson could not have been clearer about that in Mobil. Courts do not have a roving commission to go out and find interesting things over which they might have subject matter jurisdiction. They can only adjudicate cases which are brought to them. No group member is a party to this proceeding. No group member brings a claim. No group member subjects itself, him or herself, to the personal jurisdiction of the in personam jurisdiction of the Federal Court. So, the only way in which those claims can be adjudicated is if the legislation operates to enable the court to adjudicate those claims even though they have not sought the court’s adjudication.

This is the thing that we do not see in the submissions that are – the distinction that we do not see in the submissions of our learned friends. If we read the submissions of our learned friends, they put representative parties and group members in the same category. They are fundamentally different because one of them invokes the jurisdiction of the court, comes within the jurisdiction to do so, the other does not.

So, the question in this proceeding, and it is a very simple one – accepting that Part IVA allows the court to adjudicate the claims of persons not before it ‑ the question which must be answered is: who is embraced by that cohort? Is it everyone in the world or is it persons within the Territory? Now, if it is everyone in the world it must be because the legislature has expressed an intention that it can reach over territorial boundaries and bindingly effect the rights of persons in another state, in another sovereign state.

EDELMAN J: Is that because they are in a different state or is it because they have not consented to the authority of the court being exercised?

MS HARRIS: It is because they are in a different state, your Honour. All jurisdiction is territorial.

EDELMAN J: So, the points you made earlier about the fact that they have not come before the court or consented to the authority of the court, that actually does not matter.

MS HARRIS: It does matter, your Honour, because our Parliament is centrally concerned with persons within the territory. It has the power to have the Federal Court adjudicate the rights of persons not before the court because curial jurisdiction – legislative jurisdiction – is territorial. Our Parliament has a perfect entitlement – quite consistently with comity of nations – to do that. It is a very different matter if our parliament says, now I am going to get the Federal Court to adjudicate the claims of people in Brazil who may never know that these proceedings have been initiated, who have no role in them, who are not a party to them, who have not submitted to them.

The distinction is a meaningful one because – as Dicey’s Rule 36 now, I believe, Rule 33, exposes – while the judgment of the Federal Court will be effective within this territory – and it will bind people within this territory – and it will stop people bringing proceedings in this territory, once a judgment is given – it will not do so with respect to persons outside the territory.

GORDON J: But, does that not work against you? That works very much against you because that is the point – it is a judgment for an Australian law and the extent to which it is able to be enforced overseas is a matter for foreign law, in the foreign country. So, it cuts against the proposition that there is some difficulty here, is there not?

MS HARRIS: On the contrary, your Honour. It creates a difficulty. So, there are two problems with respect to what your Honour said. Firstly, your Honour inverts the presumption. So, the presumption is that, in its application to group members, Part IVA intends to deal with persons within the territory – full stop. So, it ‑ ‑ ‑

GORDON J: I will ask you about that in a moment – that proposition. We will come back to testing that proposition in a moment. But, let us assume that that is right.

MS HARRIS: That that is the proper operation of the presumption – that it is presumed to operate with respect to persons in the territory.

EDELMAN J: I do not even understand what that means.

GORDON J: No, nor do I.

EDELMAN J: What do you mean by “persons within”? Persons who are domiciled in the territory? Persons who are ordinarily resident within the territory? Persons who are permanently resident in the territory? Or – what do you mean by “in” the territory? Persons who are on holiday?

MS HARRIS: Your Honour, these are not concepts which have troubled this Court in terms of their understanding. Can I give your Honour a few references?

GORDON J: Just before you do that, what I am concerned about is, if I accepted everything that you said and I got to this question about residency, I have practical problems with it. At what point in time? When the cause of action accrued? When the proceedings commenced? When they opt out? On judgment? Do I have a trial within a trial? These were supposed to be mechanisms to facilitate and make easier that which already existed, so to add to the concerns about this idea of residency is just the practical difficulty of doing it.

MS HARRIS: It is much more difficult, your Honour. These are distinctions which are conventionally drawn in other statutes dealing with group proceedings. This is resident, non-resident, it is a conventional discrimen used for the very purpose of ruling in people within the territory and ruling out people outside the territory. Perfectly conventional discrimen.

Now, it actually makes life harder once you say this operates with respect to anyone in the world. It does not make life harder in a case where the class is within Australia. It makes life very difficult if the class is located in Brazil, or in Portugal or in South Africa where the means of distribution notices becomes problematic. Conveying to people that their legal rights are being affected by some far-off court in Australia becomes problematic. Doing so in a language that they understand becomes problematic.

It cannot be supposed, we say, that the legislature intended to reach in to these other jurisdictions and affect the rights of persons who may have no hope whatever of receiving notice and then comprehending that their rights were being so affected.

STEWARD J: Is that an independent argument in support of your case? Namely, that we should imply that “persons” is limited to people within – I will use the word “jurisdiction” – as the Court will be unable to control its processes such as opting out in an efficacious way in relation to people located thousands of kilometres away.

MS HARRIS: It engages, your Honour, with – first, it is not my burden to show that the statute operates intra-territorially. It is my friend’s burden to show it operates extra-territorially. But, it is an indication that I am right. It confirms that the operation of the statute is intra-territorial and when we look at the second reading speech, that is included in the papers ‑ I will give your Honours a reference to it in due course – what the learned Attorney‑General said at the time was that there are two purposes for this legislation.

The first purpose is to enhance access to justice for members of the community. Quite self-evidently, he was not talking about improving access to justice for members of a community in a different state. He was talking about improving access to justice for members of the Australian community. Secondly, and this is at pages 1763 to 1764 of the materials, the second thing he said was the other purpose is to improve the efficient administration of justice.

Now, for the reasons I have proffered, if anything, requiring the Court to accommodate group members outside the country is not conducive to the efficient administration of justice in this country, because the court – remembering that the court is the guardian, in effect, of the interests of group members in this context, they do not have a voice here, other than through the representative party and the court is beholden to be astute to their best interests.

So, the Court would need to be satisfied, in respect of notices given under section 33X and 33Y, that adequate notice had been provided to that person, wherever they were in the world, in a language that they could understand, so that they could be taken to have accepted the adjudication of their rights once a judgment of the Federal Court was given.

Now, we say, if anything, that that proposition is antithetical to the effective administration of justice, but I do not need to have that proposition accepted in order for my argument to be accepted, because the critical factor here and what the Federal Court – if I can put my finger on the two critical errors made by the Federal Court they are these: the first thing they did was invert the presumption, they made me prove that it operated intra‑territorially when the presumption operates the other way; the second thing that they did was to distort the operation of a presumption by focusing on, in effect, one small aspect of what Part IVA does, and your Honours will see it at paragraphs [43] to [44] of the Full Court’s judgment, which is at page 85.

GAGELER J: Ms Harris, can I ask you, before you go to that, a couple of textual questions. At the end of the day this is a question of construction and, as I understand the way that you present the argument orally, your focus is on the definition of “group member” in section 33A and what you are telling us is that the word “persons” there must be read down to mean in the case of an actual person’s residence. Do you take the same approach to the definition of “representative party”?

MS HARRIS: No, your Honour, because that is a case – and when we come to look at CSL – it is a little bit like CSL where within the statutory provision itself you have a territorial limitation, or the territorial limits of that concept are already sort of self‑defined. In other words, inherent in the concept of a representative party is someone who has come within the jurisdiction, at least in the legal sense, to submit – to initiate process in the Federal Court and to submit themselves to the adjudication of the court, so no question of extraterritoriality actually arises with respect to the person who is a representative party.

GAGELER J: So, the entire burden of your argument is on the word “persons” within the definition of “group member” in section 33A, textually?

MS HARRIS: Yes, group members, in effect. So, group members, as a concept and so that the persons who may be in that bucket. To go back to my rather crude analogy before, your Honour, Part IVA contains two buckets of persons whose claims may be prosecuted. The first bucket contains the representative party. That is the one who comes within the jurisdiction and submits the process of the Court – the adjudication of the Court. The second bucket contains the group members who are entirely passive in this process – who may have their ‑ ‑ ‑

GAGELER J: Both buckets are drawn from the well of section 33C.

MS HARRIS: They are. But then there is a distinction made.

GAGELER J: Yes, I see.

MS HARRIS: So, there is a well that is the repository of the contents of both of the buckets, but then the buckets are separated.

GAGELER J: Ms Harris, before I turn myself off, there are two further textually related questions I wanted to ask. You made mention of the Acts Interpretation Act – I just want to ask you two questions about that. You did not, I think, refer to section 2C(1) – which contains a definition of “persons”. The definition includes a body politic or corporate as well as an individual. Does that definition apply to the word “persons” in the definition of “group member” in section 33A, in your submission?

MS HARRIS: I am going to turn the legislation up before I answer your Honour. Do you mind if I come back to your Honour?

GAGELER J: No, that is all right.

MS HARRIS: The word “persons”, of course, does not appear in 21(1)(b).

GAGELER J: No. So, that is the next question.

MS HARRIS: Yes.

GAGELER J: What has 21(1)(b) got to do with it? Where is the “thing” or “matter”?

MS HARRIS: The courts have treated section 21(1)(b) as having similar work to do to the common law presumption while not codifying the common law. So, it can embrace – so, when we come to look at CSL, for example, this Court proceeded on the basis that 21(1)(b) applied to persons within the general rubric of things and matters outside the territory. I will point it out when we come to that case, if your Honour pleases. Can I take your Honours to paragraph [43] of the Full Court’s reasons? Your Honours, they start by giving a nod to Lord Justice James in Niboyet:

that the legislature of a country does not normally intend to deal with persons or matters over which, according to the comity of nations, jurisdiction properly belongs to some other sovereign or state. But section 33C(1) –

Their Honours consistently focus only on 33C., they do not look to the operation of Part IVA. The relief that we seek relates to Part IVA:

But s 33C(1) is directed to when a particular form of proceeding can be commenced in an Australian court exercising Ch III judicial power to quell a controversy . . . The manner of exercise of a jurisdiction conferred on an Australian court is not, obviously enough, a matter where it might be thought jurisdiction properly belongs to a foreign sovereign or state.

Now, pausing here, the subject matter jurisdiction of the Federal Court is not a matter for – it is not a matter where the jurisdiction properly belongs to some other state, but section 33C and Part IVA are not concerned with the conferral of subject matter jurisdiction on the Federal Court. As your Honour Justice Gordon puts to me, that subject matter jurisdiction exists independently of Part IVA. Nor is section 33C or Part IVA centrally concerned with how you initiate proceedings in such an Australian court. It is not.

GORDON J: The reason why they are focused on 33C is because, accepting, as you just did, properly that subject matter jurisdiction, is it found elsewhere in the other 150 Commonwealth legislation and in the Judiciary Act, then they are people within 33C. They are people – persons – who have claims within the meaning, so that within the bucket – as you describe it, of the 33C bucket – but you then divide the bucket into half to get to a different result depending upon whether they are representative parties or whether they are group members.

MS HARRIS: Indeed, your Honour. The ‑ ‑ ‑

GORDON J: Sorry.

MS HARRIS: No. I beg your pardon, your Honour.

GORDON J: So the question is: where is the divide to be found as a question of construction? Within Part IVA, given the role Part IVA plays within the things that you obviously take for granted, and must?

MS HARRIS: It, of course, exists within Part IVA, and it is in ‑ ‑ ‑

GORDON J: No, no, but it is broader than Part IVA. It is within the way in which the Federal Court Act works, providing a set of procedures and mechanism for jurisdiction which we find outside of this Act.

MS HARRIS: And, your Honour, other than Part IVA – and the judge made rules in order 9 – can we leave those to one side? We are talking about the Act – outside Part IVA, the jurisdiction of the Federal Court may only be exercised with respect to controversies brought to it in Australia. In other words, the inception of the proceedings occurs in Australia. That is why Part IVA is not about the inception of proceedings. Part IVA does not tell you how to incept proceedings. It says you, as a representative party, may incept proceedings on behalf of other people. And the central concern of Part IVA, the central focus is on how the court may adjudicate those rights – the rights of those other people.

Whose claims may be adjudicated is a central first question and – with respect, your Honour – it is not answered by saying “a person with a claim.” If the person did not have a claim, there is no question of them being a group member, because the court could not exercise jurisdiction over someone who did not have a claim with respect to which it has subject matter jurisdiction. It goes without saying that every single person in the well is a person with a claim, but the question here – and it is not answered by the Full Court – is whose claim may be adjudicated without their consent? Is it anyone in the world or is it persons within the territory? And this is not a case where the legislation simply confers a benefit. It purports to confer a burden. It purports to affect the rights of those persons outside the territory. It purports to preclude them from initiating proceedings in their home territory, should they wish to do so.

Now, it probably does so ineffectively, but that is a point in my favour because the whole purport of this legislation, the quid pro quo, is that if a respondent is to be subjected to the adjudication of claims by persons not before the court it must have finality and the reading that our learned friends in the Federal Court give to the legislation does not do so.

Now, they go on at paragraph [44] to give a nod to Barcelo and Meyer Heine and section 21(1)(b) of the Acts Interpretation Act, and then they say towards the end of the paragraph in the second‑last full sentence:

But, as noted above, the provision to be construed here –

“the provision to be construed here” ‑ it is not a provision, it is Part to be construed here:

relates to how persons can start a particular form of proceeding in an Australian court. The presumption has no work to do in the search for meaning of a statutory provision of this character.

Now, in that, the court clearly erred. They erred in their focus on section 33C, they erred in their characterisation of section 33C, and very specifically they erred in their characterisation of Part IVA. Part IVA is not a part that simply relates to how persons can start a particular form of proceeding because group members never start a proceeding, they may never know it existed.

GAGELER J: Ms Harris, as I understand your argument, you can accept what they say about section 33C(1), can you not?

MS HARRIS: I can accept that – I cannot accept that that is what section 33C(1) does. I can certainly accept that, to the extent it confers jurisdiction on the Federal Court, that is not a matter for a foreign – that is not, per section, a matter for a foreign sovereign. It intrudes on the jurisdiction of other states and sovereigns at the point where that jurisdiction – the power – is exercised with respect to people outside the territory. That is why you cannot read 33C in isolation, because when you get to section 33ZB that is the crunch, and at that point – and 33ZB only concerns group members, the judgment binds all of the group members.

GORDON J: Ms Harris, in response to Justice Gageler’s question, then, you said that section 33C confers jurisdiction on the Federal Court. It does not, does it?

MS HARRIS: I said if it confers jurisdiction, because that is the language used by the Full Court at the end of paragraph [43] and our argument is the same whether it confers jurisdiction or power. Now, it is an open question, your Honour, because the statutes pursuant to which the Federal Court obtains jurisdiction to deal with persons who invoke its jurisdiction do not allow it to adjudicate the claims of non‑persons – of non‑parties to the proceeding. The only way in which the court obtains in personam jurisdiction over those persons is through Part IVA, but I do not need to chase that rabbit right down the hole because even if we treat Part IVA as simply a matter of procedure it does not matter, it gives powers to the Federal Court, and the question still arises: with respect to whom does it give those powers?

Now, our learned friends say that two things about this: firstly, that we should be looking at this to see whether, on a literal reading, the statute would be inconsistent with the comity of nations or international law; or where it improved on the subject matters over which some other sovereign has jurisdiction.

Now, that – they then embrace what the Full Court did below in taking that narrow focus, saying, all we are looking at here is claims that can be adjudicated by the Federal Court. That is not what we are looking at here. And they also invert the presumption in a similar way, to say, well, it is capable of applying to anyone in the world, so, you have got to show why it should not do so.

KIEFEL CJ: Ms Harris, the presumption has regard to – the purpose and object of the presumption is an interference with the exercise of jurisdiction by a foreign power, by another sovereign state. But your argument really does not touch on what that could be here. We are not really talking about an interference by a sovereign state of jurisdiction over group members’ claims, are we?

MS HARRIS: Your Honour, the interference with matters within the province of another sovereign or state is affecting the rights of persons within the territory over which that sovereign or state has jurisdiction.

KIEFEL CJ: But they are not the same thing ‑ just saying that the person in another jurisdiction might be affected by an Australian court is not the same thing as saying that a sovereign state is exercising jurisdiction, and the powers exercised here regulating the procedures of an Australian court exercising jurisdiction are interfering with the exercise of the foreign state’s jurisdiction.

MS HARRIS: Your Honour, that picks up the way in which our learned friends put the argument, and that is why I think we have tried to go back to basics in terms of the articulation of the presumption. And so, can I give your Honour – I am conscious of time and getting through what I need to get to, but can I give your Honour some references to the articulation of the provision by this Court? And so, in Morgan v White, Justice Isaacs said that there was a prima facie presumption that:

the persons, property, and events in respect of which Parliament has legislated are presumed to be limited to those in the territory over which it has jurisdiction –

Jurisdiction is territorial. The jurisdiction over which our Parliament legislates is the Commonwealth of Australia. Now, there are equally clear statements by Justice Barton in the same case at pages 4 to 5 ‑ the statement from Justice Isaacs was at page 13 of 15 Commonwealth Law Reports.

That statement is picked up by Justice Taylor in Meyer Heine that I will go to in a moment. It engages centrally with a number of dicta from Justice Windeyer. The one in Myer Heine that I will come to and then in Reg v Foster which is at page 1159 of the bundle, at [1959] HCA 10; 103 CLR 256. In that case, Justice Windeyer says at 306 that:

A statute in general terms is always construed as prima facie affecting things and persons within the territory of the country which enacts it, and as not affecting things elsewhere.

That is the sense in which we deploy the presumption. The legislation is always construed as prima facie affecting things and persons within the territory and not affecting things and persons elsewhere. And on our learned friends’ reading of the statute, it affects persons elsewhere. And his Honour goes on to say in that same passage that at common law sovereignty is:

territorial; because territorial boundaries ordinarily mark the limits of the effective enforcement of municipal law.

It is geographic. Justice Leeming in DRJ, I think at paragraph 100 and following, makes the same point, by reference to authorities of this Court.

EDELMAN J: Why would there not, on that submission, be no distinction between persons who are representative parties and persons who are group members? In other words, on that approach to the presumption, surely a person who is a non‑Australian resident or a permanent non‑Australian resident could not be a representative party either?

MS HARRIS: But they come within the territory to initiate proceedings. In a legal sense, you cannot initiate proceedings in the Federal Court without coming within the territory in the legal sense, your Honour. You cannot. You have to do so.

EDELMAN J: So, your presumption against extraterritoriality, it does not actually matter whether the person has consented or not consented to the bringing of the proceedings.

MS HARRIS: Your Honour, in terms of the presumption against extraterritoriality, it inquires only as to whether something is inside or outside, in crude terms.

EDELMAN J: No. But they cannot – well, then your argument would have to be that a representative party has rebutted the presumption.

MS HARRIS: Yes. Or, it is inherent in the concept of a representative party – your Honour frowns at me, but it must be the case that a representative party is necessarily someone who has come within the jurisdiction. And so, when we are talking about those two buckets; we draw into the well, we have got a represented party bucket, that person must come into the territory to submit itself to the jurisdiction of the court. So, there is no question – I would agree that the presumption has no work to do there. You do not need to worry about the presumption there. It is the other bucket, because the other bucket is full of people who had not come in, who have no submitted themselves to the jurisdiction of the court. Some of them may be within the territory, some of them may be outside.

EDELMAN J: So, it is a presumption against extraterritorial operation of legislation in the sense that the legislation would apply to permanent non‑residents who have not brought themselves within the jurisdiction of the court. Would that be the most accurate way to express the presumption?

MS HARRIS: The most accurate way to express the presumption is that it draws a distinction between persons within the territory and persons without. And that ‑ ‑ ‑

EDELMAN J: Well, an Australian on holiday overseas is outside the territory, but that is not what you are talking about. You are talking about persons who are permanently resident outside the territory, as I understand it.

MS HARRIS: I am talking about residency as a concept which is well understood by both this Court and a concept which is well understood and deployed in legislation, including in group proceedings legislation. And, as your Honour will see, when your Honour reads the article by Professor Mulheron describing the way in which other group‑proceeding statutes work with respect to non-residents, it is the precise reasons – firstly, they use residency as a territorial discrimen. Secondly, they make the non‑residents opt in, so as to ensure that their rights can be bindingly affected, as is intended in a statute of this kind. And we do not see any of that here. The provision is perfectly bald, and it is – as I have said, it was enacted in order to provide access to justice to members of the community.

I would submit to your Honour that that does not mean members of a community in Brazil – that means members of the community in Australia and to improve the efficiency of the administration of justice in this country. Again, I do not see anything in that context that suggests that the legislature was concerned to provide a pathway for persons outside the territory not to have their claims determined because they do not bring their claims to court.

STEWARD J: Ms Harris, you said before that residency has an accepted meaning or a meaning that is well‑known. Can you just tell me what it is here?

MS HARRIS: So ‑ ‑ ‑

STEWARD J: Is it a permanent place of abode test or ‑ ‑ ‑

MS HARRIS: It is more likely to be the place of abode and we would say to your Honours that the test is most likely to be applied at the initiation of proceedings. That is the point at which section 33C is engaged with respect to group members.

STEWARD J: So, the issue of domicile we ignore?

MS HARRIS: So, domicile is a concept which is also being used in the cases. Your Honour, the important thing is, firstly, that the presumption requires us to draw the line, and then the question is how you draw it. We see residence as the most convenient territorial discrimen. It is not the only one that has been used in the cases. So, if your Honour reads, for example, the discussion in Barcelo by Justice Dixon – it is at pages 443 to 444 of the bundle – and Justice McTiernan, in the same case, at pages 463 to 465 – that kindred concept of domicile has been used.

But, as I said, Lord Justice James in Niboyet used “residence” in preference to “domicile” because domicile would have ruled the French consul and his wife out of the purview of the Marriage Act, but residence ruled them in – because they were within the territory. “Residence” was a descriptor of persons within the territory. I should say that Justice Dixon adopted the statements of Lord Justice James in Niboyet in Barcelo in that passage that I just referred to.

In those passages that I have just referred the Court to, your Honours will see a lot of terms used interchangeably. “Foreigners” is a term that is used both in Barcelo and in Meyer Heine. “Residents”, “domicile”, “subjects of another State” – the question is not what label you put on it. The question is whether the presumption operates, and then you have to give effect to it.

If your Honours were to consider the operation of Dicey’s Rule 36 or Rule 43, which is explained by Chief Justice Allsop in Akers v Commissioner of Taxation [2014] FCAFC 57; 223 FCR 8, which is at pages 1564 to 1565 of the bundle, those criterion for the enforceability of foreign judgments engage with presence in the Territory at the inception of proceedings. It is all about presence in the Territory. That is the reflection in private international law of the way in which the presumption operates here. It rules in the people within the Territory and it rules out those outside because the court’s judgment cannot successfully be enforced against them in their home territory. That is the thesis.

Now, perhaps it is time I took your Honours to Meyer Heine, which is at number 21 at page 833, and this is a case, as I said, where members of the Court typically used the word “foreigners” to describe persons outside the territory. This case concerned the statutory provision that your Honours see in the headnote, and it provided that:

Any person –

They were the words of general import:

who . . . enters into any contract –

Again, words of general import:

. . . or engages in any combination . . .

(a) in restraint of or with intent to restrain trade or commerce –

Now, pausing there, the members of the Court proceeded on the basis that that was trade or commerce with a connection with Australia, between Australia and elsewhere. Now, those words do not appear in the statute. It was not even suggested that they operated more widely. And then:

(b) to the destruction or injury of or with intent to destroy or injure by means of unfair competition any Australian industry . . .

is guilty of an offence –

Now, pausing there, the singular subject matter or this statute is within the province of the Australian legislature, the Commonwealth legislature. It is not the concern of some foreign sovereign. The subject matter is quintessentially Australian. It is directed towards the protection of Australian trade.

Now, at that point, our learned friends would draw the line and say, well, the presumption has no more work to do, because this statute is concerned with things within Australia. The subject matter is Australian. But the presumption did have work to do. It required, as we will see, a construction of this provision such that it only applied to contracts entered into within the territory. And that, I think – it demonstrates the falsity, if I might say so, of the proposition that has been advanced against us, that the subject matter of the statute must be something that belongs to someone else before the presumption can be engaged. Clearly, that is not right. It also demonstrates the falsity of the second proposition that is put against us, namely, that once a territorial nexus is established with Australia, the presumption has no work to do. Clearly that is not right, because there is a clear territorial nexus with Australia.

Now, in this case, the plaintiff was a shipping company and it carried goods between Australia and other countries, including Japan and Hong Kong, and it was not a member of the exclusive club of other shippers and shipping companies known as the Australian and New Zealand/Eastern Shipping Conference. The defendants were members of that conference and they were incorporated in the UK. They had entered into contracts with the other members of the shipping conference, and, pursuant to those contracts, all of the members of the conference had agreed to make shipments to Australia through other members of the conference. It was a closed shop.

Now, the contracts were made outside Australia. They were made in Japan and Hong Kong. The plaintiff was another shipping company that plied the same route. It will be remembered, and it sued the defendants for breach of section 4. Now, the defendants entered an appearance to the action, and so the jurisdiction of the court clearly engaged. But they demurred from the statement of claim, including the allegation that they were caught by section 4, they said that the section did not apply to the making of contracts outside Australia, at least by foreign companies. That proposition was accepted by four out of five members of the High Court.

Can I start with Justice Windeyer? Because his judgment is certainly the pithiest and it engages very centrally with the submissions we put here. It is at page 43 of the report and page 866 of the bundle. And his Honour says:

The prima facie presumption of English law is that a statute is to be construed as limited in its operation to the territory or the nationals of the state which enacts it. This is somewhat reinforced, I think, in the present case –

Et cetera, et cetera. And then, at about point 2 of the page:

That, however, is not conclusive. The broad question in the case remains whether the prima facie presumption, that the Act does not extend to penalize acts done outside Australia, by foreigners, has been displaced. The question is one of considerable importance, and I think of some difficulty. It may be that if the Act is to have a fully effective operation with respect to trade and commerce between Australia and other countries it must strike at contracts made abroad. It can therefore be argued that the nature of the subject‑matter itself indicates the scope that Parliament meant the Act to have. But this I doubt. If it had been intended that it be so widely construed one would expect some clear and express indication of this in its words.

EDELMAN J: In Justice Windeyer’s expression of the presumption, you would read the “or” conjunctively, rather than disjunctively, would you? In its operation to the territory, you would read that as saying the territory “and” the nationals of the state – not “or” the nationals of the state.

MS HARRIS: Its operation with respect to nationals – I am going to give your Honour a reference to an interesting discussion in Dicey, Morris & Collins on the Conflict of Laws, 15th edition because his Honour’s reference to nationals, there, I think, engages with what was formerly thought to be another means of obtaining personal jurisdiction – that is, through nationality.

EDELMAN J: Yes.

MS HARRIS: That has since been discredited.

EDELMAN J: No, I understand that. The point that I was making is that whether you call it “nationals” or “residents”, it is a disjunctive point in the way it is expressed, but your submission, as I understand it, would read it conjunctively – and the same with the way that Justice Windeyer later expresses the application of the presumption where he says it applies:

to penalize acts done outside Australia, by foreigners –

You would read that as to penalise acts done outside Australia or by foreigners.

MS HARRIS: No, I would not read it as saying “or by foreigners” because if foreigners commit the act in Australia, then they are clearly caught. So, when you – the effect of the way in which the presumption would apply here, was to give the statute intra‑territorial operation by treating any contract made outside the territory as being without it. So, at that point, it does not matter whether it is by a foreigner or ‑ ‑ ‑

EDELMAN J: It is not binary, though. There are degrees of extra‑territoriality and the presumption has degrees of force according to how extra‑territorial its operation will be. This case is an excellent example of that – that statutes could operate entirely intra‑territorially or they could operate partly extra‑territorially and then the question of the presumption – the force of it – will apply, depending on the extent to which it is going to operate extra‑territorially.

MS HARRIS: I am not sure that I would accept all of what your Honour says – certainly with respect to degrees. Unless, by that, your Honour means that you might not need to interpret every word in the statute as being within Australia in order to give it intra‑territorial effect. That is the point, really – that the role of the presumption is to give the statute intra‑territorial effect – in that geographic sense – unless Parliament makes clear that it intends it to have an extra‑territorial operation. So, the Competition and Consumer Act is a good example of where Parliament has expressed itself in that way. It does so by reference to “residence”. So, section 4 of the Competition and Consumer Act says that the Act extends to things done outside Australia by residents of Australia. So, it engages, again, with those territorial concepts but it expresses an intention that it will operate outside the geographic territory of Australia.

Now, here the legislation did not do so. It did not make that intention clear, and his Honour said there is no indication in the statute that it should apply outside Australia, and so that is the end of it. Then his Honour goes on and says that conclusion is reinforced by section 9 – we will come to section 9 in a moment – that seems to indicate fairly plainly that it is to operate intra‑territorially. If that be so, then Parliament needs to make an amendment, and we say the same thing here. The real intention is to give access – is to have – is to facilitate the bringing of claims by persons in another jurisdiction and it behoves Parliament to make that intention clear.

Now, working backwards, Justice Menzies was the only member of the Court who found a contrary intention expressed in the legislation and the critical passage is from his Honour’s judgment at pages 38 to 39 of the report, which is at page 861 and following of the bundle. He accepts the presumption at about point 5 on page 38 of the report, and then at page 39 discerns a contrary intention and your Honours will see that at about point 4 on the page, driven by the definition of “commercial trust” but also by the import of the legislation, but his Honour was in the minority on that score.

Justice Taylor’s judgment – the material part of his Honour’s judgment starts at page 30 of the report ‑ ‑ ‑

EDELMAN J: Sorry, at page 38 where you said that Justice Menzies accepts the presumption, is it not a different presumption that Justice Menzies referred to where his Honour talks about presumption relating to penal laws?

MS HARRIS: This is an aspect of the same presumptional route, if I can put it that way. This presumption against – extraterritoriality is a function of the comity of nations and there is no doubt – and Justice Dixon explained it in Barcelo – that this presumption is a function of the fact that states are presumed to stay in their lane and to legislate with respect to things within their territory, and not with respect to things, including people, in another person’s territory and so that is what his Honour is expressing there.

You are presumed – the Commonwealth Parliament is presumed, in passing a penal law, not to be reaching inside the territory of another state to punish acts done there, that is the province of the other sovereign. So, it is simply an aspect of this broader presumption, we say. Your Honour, I am conscious that your Honour usually advises at 11.15 ‑ ‑ ‑

KIEFEL CJ: I wondered whether you wished to finish your reference to Meyer Heine first.

MS HARRIS: Yes please, your Honour. So, at page 30 is the commencement of the discussion by Justice Taylor and then, at about point 8 of the page, his Honour says:

The first question which arises is concerned with how far, if at all, the provisions of s. 4(1) of the Act apply to, or with respect to, contracts or combinations made or entered into outside Australia. The sub-section, which is generally silent on the point, merely provides –

And then he cites it. Then the last line:

The words of the section are general but, prima facie, “the persons, property, and events in respect of which Parliament has legislated are presumed to be limited to those in the territory over which it has jurisdiction” (per Isaacs J. in Morgan v White) and “it is always to be understood and implied that the legislature of a country is not intending to deal with persons or matters over which, according to the comity of nations, the jurisdiction properly belongs to some other sovereign or State” –

That is territorial jurisdiction. Now in the last paragraph on that page, he says:

For the plaintiff it is asserted that the very subject matter with which the Act deals makes it manifest that the legislative intention was that the section should extend to acts done beyond the Commonwealth. It was intended for the protection of the trade and commerce of this country with other countries and among the States and both categories of trade, and particularly the former, can just as well be affected adversely by contracts and combinations made and entered into in other countries as by contracts and combinations made or entered into in Australia. But I do not find in these very general considerations any clear indication that s. 4(1) was intended to apply to acts done or performed outside Australia. Indeed, there is, I think, manifest in the provisions of s. 9 a recognition that the other provisions of Pt. II do not so apply.

And that is the “aiding and abetting” provision which is referred to in the middle of page 32, which makes clear that that provision, the aiding and abetting provision, operates intra‑territorially. So, again, the same sequence of reasoning, his Honour applies the presumption, it only applies to persons and things within the territory unless it is displaced. And there is nothing to displace it. On the contrary, section 9 tells you that it operates intra-territorially.

Now Justice Kitto, whose judgment on the question essentially commences on page 22 of the report and his judgement was agreeing with Justice McTiernan, at point 8 of the page, his Honour says:

The contention here is that s. 4(1) does not apply to the making or entering into of a contract outside Australia, at least by a company which, like each of the defendants, owes its incorporation to the law of another country. The question thus raised is one of pure construction. So far as material, the provision made by s. 4(1) is that any person who makes or enters into any contract . . . There being no express geographical restriction –

And, your Honour, this is an example of what we say is the operation of the presumption. It is a geographical territorial presumption:

There being no express geographical restriction upon the generality of any of the expressions “any person”, “makes or enters into”, and “any contract”, the question is whether such a restriction is implied. I take it to be clear that no basis for a conclusion on this question is to be found by consideration of any limit upon constitutional power.

This engages with what your Honour Justice Gordon put to me before. This is a distinct issue to the question of territorial nexus for the purpose of constitutionality:

If implication there be, it must arise either from other provisions of the statute or from the general rule that “if any construction otherwise be possible, an Act will not be construed as applying to foreigners in respect to acts done by them outside the dominions of the sovereign power enacting” –

territorial presumption. And, in the end, his Honour found section 9 was a powerful indication that the legislation was intended to operate intra‑territorially. Before referring your Honours to that, can I draw your Honours’ attention to what is said at about point 7 of the page, citing Lord Russell of Killowen in Jameson:

“That is a rule based on international law by which one sovereign power is bound to respect the subjects and the rights of all other sovereign powers outside its own territory”.

It stays in its lane. And so then we see at page 24 of the report, in the first full paragraph:

I rest my conclusion, however, not upon such considerations as these but upon the fact that I find in s. 9(b) of the Act what seems to me a compelling indication that in creating offences the Act intends to speak territorially.

And that is the aiding and abetting provision. So, we take from this case that in the absence of a clear indication by Parliament, the presumption takes statutory provisions of otherwise universal application and construes them so that they have a territorial application. That is, an application limited to persons, property and events in Parliament’s own territory. And while the comity of nations is a foundation for that, the presumption looks to the territorial operations of the statute and it is not rendered redundant if there is another territorial nexus to be discerned on the face of the statute with Australia. The issue is the extent of territorial operation, not its connection with Australia. Now, if your Honours please, I was going to move to another case.

KIEFEL CJ: Yes, thank you. The Court will adjourn for 15 minutes.

AT 11.21 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.35 AM:

KIEFEL CJ: Yes, Ms Harris.

MS HARRIS: Thank you, your Honour. So, moving on from Meyer Heine, can I fast‑forward to the present century, to this Court’s decision in Re Maritime Union of Australia; Ex parte CSL Pacific Shipping Inc (2003) 214 CLR 397, it is at page 1084 of the bundle. This case is relied on by the respondents to contradict BHP’s position, but we say it plainly does not do so. It concerned a provision of the Workplace Relations Act in its application to foreign seafarers who were employed under contract entered in overseas on vessels that were, nevertheless, operating in Australian waters. Three unions applied to the Industrial Relations Commission for variation of an industrial award to add the employer of the foreign seafarers. The employer was a foreign entity. They applied to add it to the award for the benefit of the sailors.

The Industrial Relations Commission found that there was an industrial issue within the meaning of section 5(3)(b) of the Act which granted jurisdiction in the Commission to hear it. The employer then applied for writs of certiorari and prohibition, arguing that the Act did not empower the Commission to determine the terms and conditions of employment of persons who were not Australian nationals or residents employed under contracts entered into overseas and governed by foreign law. They argued that there was no industrial issue within the meaning of section 5(3)(b) because that section had to be read down in reliance of the presumption in section 21(1)(b) – and an aspect of the common law presumption which I will come to shortly.

Section 5(3)(b) appears at page 406 of the report – which is page 1093 of the bundle. Your Honours will see that it defines what are industrial issues – namely, in subsection (b):

matters pertaining to the relationship between employers and maritime employees, so far as those matters relate to trade or commerce:

(i) between Australia and a place outside Australia

(ii) between the States; or

(iii) within a Territory, between a State and a Territory, or between 2 Territories –

If your Honours were to keep your fingers there and go over to page 415 of the report, your Honours will see how the employer contended that the section should be read – namely, that they wished to read “employer” as meaning an:

employer has no “presence” in Australia –

and they wanted to read “employees” as being employees who were not:

foreign non‑residents who are not members of any relevant Australian industrial organisation –

That is a lot to read into section 5(3)(b), so it is not surprising that that was considered a bit of a stretch. But there was a further problem with what the employer was putting – and that is that an intra‑territorial reading is mandated by section 21, unless a contrary intention appears – and it did appear.

In the statute with which we were concerned, the legislature had not left the reader guessing about the territorial reach of the provision which defined industrial disputes. But it made its intention clear in subsections (i) through (iii) and so the High Court held. The reasoning appears at paragraph 43 on page 415 of the report. And the Court says that:

The point which the prosecutor seeks to make good may be examined by reference to the provision of the Jones Act (55) construed by the Supreme Court of the United States –

in a variety of cases:

That statute conferred rights upon –

and a quote:

“[a]ny seaman who shall suffer personal injury in the course of his employment”.

And they quote what Justice Jackson said in Lauritzen, to the effect that:

“It makes no explicit requirement that either the seaman, the employment or the injury should have the slightest connection with the United States. Unless some relationship of one or more of these to our national interest is implied, Congress has extended our law and opened our courts to all alien seafaring men injured anywhere in the world in service of watercraft of every foreign nation – a hand on a Chinese junk, never outside Chinese waters, would not be beyond its literal wording.”

And so it was that the Supreme Court of the United States read the provision sound. In relation to that, the Court says, at the first paragraph on 416:

The Supreme Court decisions upon the Jones Act are concerned with the reading of territorial limitations into the statute, with contrasting outcomes upon differing facts. To such legislation, if enacted in Australia, s 21(1)(b) of the Interpretation Act would have a readily apparent application.

And that is the passage that I referred your Honour Justice Edelman to earlier. But this is the crunch here:

But the terms of s 5(3) of the WRA are not at large. Rather, they identify, in par (b) thereof, trade and commerce between the States, between Australia and a place outside Australia, and within and between Territories and between a State and a Territory. Section 21(1)(b) has no relevant operation upon s 5(3) of the WRA.

So, in effect, the presumption there is rebutted by the fact that the – the legislature has not left the reader guessing as to territorial reach of the provisions. It has made the territorial reach of that provision abundantly clear in its enactment of sub-paragraphs (i) through (iii). We contrast that with the present situation where Parliament does not make the territorial reach of the concept of group members clear, and it does not do so either expressly. It does not do so by necessary implication when, as here, Parliament has made the position clear that the presumption may have no work to do or it may be rebutted.

The second argument that was advanced by the prosecutor was a very specific application of the common law presumption and your Honours see it expressed in the last sentence in paragraph 45. They say:

In particular, the prosecutor emphasises the need to displace only by clear and express terms what are said to be the rules of customary international law preserving to the law of the flag the regulation of the “internal economy” of ships, and protecting the right of “innocent passage”.

Now, they are not rules or aspects of the rules that we invoke here. We do not say that the statute should be read down or construed in some fashion because it cuts across rules of customary international law. However, that might be, our friends rely on it and so it is important to understand why the Court rejected that argument. It was rejected because in fact the statute did not cut across those norms of international law. Your Honours will see at paragraph 48 that the Court holds that:

there is no interference –

with innocent passage. And at paragraph 52 to 53 that there was no necessary interference with the internal economy of the ship that was affected by the legislation. So, the presumption did not have any work to do in that case, certainly not the work that the employer urged upon the Court.

Now, we raise this case because our learned friends rely on it. They say it is somehow determinative of the question before this Court. Firstly, they say, well, there is no – they express the presumption in terms of interference with rules of customary international law. That is not the operation of a presumption with which we are concerned here. That might be another aspect of the presumption which I expressed as being under the rubric of the presumption against extraterritoriality or traversing upon the jurisdiction of another sovereign or State, but the presumption that was considered in CSL is not the one with which we are presently concerned.

Secondly, our learned friends seem to suggest that this case justifies an inversion of the presumption. And when I talk about an inversion of the presumption, I mean that it is not my burden to show that the legislation should be read intra‑territorially. It is the burden of those who would seek to rebut the presumption to show that it should be read as having extraterritorial operation; that is, it should be read as affecting the rights of persons outside of the territory. And there is nothing – your Honours will see nothing in the judgment to justify that.

Circling back to an argument that I think your Honour Justice Gordon put to me earlier, it is in this context that our learned friends say it is enough that putative group members have a claim which is capable of attracting the subject matter jurisdiction of the court. They say once that is accepted, the presumption has no scope for operation, but they never answer the actual constructional question which is posed: whose claims may be brought forward on their behalf, quite possibly without their knowledge, for adjudication? That question is not simply answered by saying persons who have a claim susceptible of the subject matter jurisdiction of the Federal Court. That goes without saying, otherwise there is no question of them being made group members.

But that is not an answer to the territorial question which is posed by the presumption. Here we have a statute which, on its face, says that anyone in the world who has a claim which is capable of adjudication by the Federal Court may be included as a group member by a representative party and subjected, quite possibly without their knowledge, to a purportedly binding determination without ever agreeing to that course. And so, the presumption is necessarily engaged. We say it has to be engaged to answer the question: what was the intention of the legislature? Was it the intention of the legislature that anyone in the world may be so brought within the jurisdiction of the Federal Court, or was the legislature concerned to provide to pathway for the adjudication of claims of persons within its own territory?

Now, this is the legislative choice that is referred to by Professor Mulheron and which was adverted to by the Full Court in paragraph 46 of its reasons. That is the legislative choice that is explored in the article which your Honours will find at pages 1771 and following of the bundle. I will come back to it momentarily, but let me just say a few things about the – the relevant choice is mischaracterised by the Federal Court. The Federal Court characterises the legislative choice as which statutory model, but the choice is whether and in what circumstances the claims of non‑residence are to be adjudicated. A given legislature could allow, through its legislation, group actions to include any and all foreign residents – it could do so, that would be one legislative choice, to allow anyone in the world to be made a group member – or it could only to allow the claims of foreign group members to be adjudicated where they have submitted to the jurisdiction of the territorial court so that there cannot be any debate about whether they are actually bound.

GORDON J: One wonders why the first is not arguably the more logical construction when one looks at the history of these provisions. And it is the reason why I start with jurisdiction, because if you have got jurisdiction here in relation to shareholders, absent the Part IVA proceedings, and then one looks to the procedures for the bringing of the proceedings, what you seek to do is to cut down that which already exists and impose an additional limitation. Now, you would say I am inverting the presumption, but if you look at it as a question of construction and the way in which section 33C works, then it may very well be that the former is a preferable view.

MS HARRIS: Your Honour, we are not cutting down anything at all. And this is where it becomes very important to distinguish between subject matter jurisdiction and in personam jurisdiction. Nothing in what I have said, nothing in our submissions at all, urges upon this Court a cutting down of the jurisdiction of the Federal Court, with respect, in its subject matter jurisdiction. Nothing in what I have said urges a cutting down of the jurisdiction of the Federal Court insofar as it can exercise in personam jurisdiction over the persons who bring claims before it. Nothing in what I have said urges a cutting down of that.

Part IVA extends the universe of persons whose claims may be adjudicated. As I said in answer to Justice Edelman earlier, I like what Chief Justice Gleeson said in McBain at paragraph 7, reminding us that this Court – no Australian court – is at liberty to seek out and adjudicate claims which persons have not chosen to bring before it. Now, but for Part IVA or some other procedure allowing representative action, Mr Impiombato has no right whatever to bring before the Federal Court the claims of persons other than himself. He has no right whatever to do that. The only time the court’s jurisdiction can be enlivened to allow the adjudication of those claims – the only time the court can exercise power with respect to those persons is if, relevantly, for present purposes, Part IVA gives it the power to do so. And that is the question. That is the legislative choice.

EDELMAN J: I am not sure that, as an absolute proposition, that is right. There are quite a number of cases on, for example, equitable assignment, where persons who are not parties before the court’s rights are represented by a claimant.

MS HARRIS: Your Honour, you can assume that what I put to you was not engaging with an instance where there might have been a contractual assignment of rights. In that case, the assignment of the rights authorises that person to bring the claim. In the case with which we are concerned, your Honour, there was no authority conferred on Mr Impiombato by the many, many hundreds of thousands of people that he has named in his group. There is no authority conferred on him by them.

So, this is the expansion of the Federal Court’s jurisdiction to adjudicate the claims of those people and the question – this is the legislative choice that Professor Mulheron explores. Did the legislature intend that he should be able to name anyone in that group, anyone in the world, so that the Federal Court could then adjudicate the claims of anyone in the world, however remote from Australia, or did the legislature intend that that question should be answered: “persons within the territory”?

Now, in answering that question, and to go back to the question your Honour Justice Gordon put to me, this Court is not at liberty to answer that question at large. It is bound by the authority of this Court to apply – in determining the territorial reach of the general words in the statute where Parliament has not otherwise given an indication, it is bound to apply the presumption.

STEWARD J: Ms Harris, do you contend your case that there is no necessary underlying purpose or policy that would govern how the legislative choice would be made for any given particular class action regime?

MS HARRIS: Your Honour, if we have a clue as to policy – there are a number of clues as to policy. One clue as to policy is the purport of Part IVA and cognate regimes is to produce a final and binding outcome. That is the quid pro quo of allowing the claims of persons not before the court to be adjudicated and determined in the binding fashion – that is, of a fashion binding on them and affecting their rights. The quid pro quo is the respondent gets certainty. That puts an end to the controversy. The controversy is quelled.

That policy is given effect to by legislation which has intra‑territorial operation. In other words, it will – a pivotal provision like section 37ZB will have effect to prevent claims being brought in Australian courts. It will do that. But what it will not do is prevent claims being brought in the home jurisdiction of non-residents. It is perhaps worth going to the article, since I have referred to it so much. It is at item 42, page 1771 of the bundle. This is Professor Mulheron’s article on – and your Honours can see the title: “Asserting personal jurisdiction over non-resident class members”.

This is the point I was making to your Honour Justice Gordon before, that we are not concerned here with the subject matter jurisdiction of the Federal Court. That goes without saying. If the subject matter jurisdiction of the Federal Court was not attracted, we are out of court, in any event.

The question here is the assertion of personal jurisdiction over non‑residents in circumstances where Dicey’s rule – formerly known as 36, now known as 43 – says the judgment of a court in Australia will only be enforced by a court in another jurisdiction against someone who has been present in the jurisdiction at the time the proceedings were issued, as otherwise submitted in some fashion. So this is precisely the problem that has led other legislatures – against a background which our legislature did not have the benefit of in 1991 – to express their legislative choices very clearly.

The legislative choice made by the UK Parliament is referred to at page 1774 in section 47B(11) of the competition legislation. The competition law in the UK represents the first assay by the UK Parliament into the territory of opt‑out class actions but in relation to non‑residents it reverses the test. So your Honours see from paragraph 47B that:

“Opt‑out collective proceedings” are collective which are brought on behalf of each class member except –

(a) any class member who opts out –

and then:

(b) any class member who –

(i) is not domiciled in the United Kingdom –

and has failed to opt‑in. In other words, it makes them opt‑in, and the reasons why that is so are also discussed. The reasons – I am searching for the – your Honours see at page 448 under the text of the section:

Even where the UK Court decides, at the certification hearing, that the domestic class should be formed on an opt‑out basis, any non‑resident class members . . . must opt‑in to the action, in order to be bound by any outcome on the common issues . . . It is strictly opt‑in for those non‑residents.

The reason for that is discussed at page 1781. It engages with this first policy reason that I identified for your Honour and that is the problem – and I will leave your Honours to read it given the time – the problem that the adjudication of the English court will not bind non‑residents in the home territory, and it will not prevent parallel proceedings by those people in their home territory and therefore it will not provide finality, which is a central concern of legislation of this kind, including Part IVA.

So, it is then, that different legislatures have made different choices about whether – and if so, in what manner – overseas residents may be made group members in a class action – and the various models are discussed at 1778 through to 1770. I commend the article to the Court – particularly at pages 1771 to 1784 – because it gives a very important context to the submissions we made.

The second matter of policy, your Honour, is we look to the reasons why this statute was enacted. We look to the second reading speech at 1762. We look to what has fallen from this Court in that regard, and there are two aspects to it: enhancing the access to justice for members of the community and enhancing the efficient administration of justice. As to the first, there is no indication whatsoever in the second reading speech – or anywhere else – that the concern of the legislature was to provide an avenue whereby the claims of persons not within its territory should be bindingly adjudicated. There were not members of the community that are being referred to.

Secondly, all sorts of problems ensue if persons outside the territory – can ensue. Persons outside the territory who may not speak English, who may not be familiar with the courts of the country, who may not be easily reachable by ordinary means of distribution of notices. Central to the operation of section 33ZB – the notice provisions – and section 33ZB assumes that those notice provisions will work effectively. That assumption cannot be made with respect to persons outside a territory.

I am conscious of the time, so can I move very quickly through a few other propositions? Although I have jumped around a little bit, having regard to your Honours’ questions, we want to emphasise the fact that the first proposition that this Court needs to engage here, with respect, is whether the presumption has been engaged. Nothing that our learned friends have said can deny the engagement of the presumption. The second argument that they advanced around the presumption becoming redundant once a territorial nexus is established confuses the territorial competence – so the constitutional territorial competence of Parliament – with what it might intend to do in a given statute.

Can I just give your Honours some references? Because it engages, again, with a question that your Honour Justice Gordon asked me. This distinction was discussed by Justice Dixon in a series of cases. The first is Wanganui v AMP [1934] HCA 3; (1934) 50 CLR 581 at pages 599 to 601. Again, in Barcelo, 48 CLR at page 428, and, again, in Reg v Foster at103 CLR at page 268. There is also a very useful discussion by Justice Leeming in DRJ v Commissioner of Victims Rights (No 2) [2020] NSWCA 242; (2020) 103 NSWLR 692 at 723. Put in very short format, the presumption assumes legislative competence. It assumes that a sufficient constitutional nexus is otherwise supplied and addresses a different question – namely, whether the legislature intended in its use of general language capable of applying to persons, matters and things outside the territory to, in fact, do so.

Having established that the presumption is engaged, it has been our learned friends’ burden to show it has been displaced. Again, I have – in answering your Honours’ questions – engaged with a number of the things relied on to say that the presumption has been displaced. The first is the text of section 33C and the role of the claims – and I have addressed your Honours on that. It is worth adding to that, that the concept of “claim” does not have a territorial nexus. A claim might arise because of act or things done outside Australia. So, that does not provide some kind of – it does not put some territorial ring or fence around the statute. Critically, it does not give it an intra‑territorial operation.

I have addressed your Honours on the concept of residence. The relief we seek is expressed in terms of residence because that seems to us to be the term that commands the most respect in this Court and the decisions of others in terms of territorial discrimen. Courts have sometimes employed other terms, like “domicile”. That is not the point. It would be a mistake to be distracted by that label from the key task here. The key task here is giving the statute a territorial operation. That is because the presumption asks a question that says, who is within the territory and who is without? What is within the territory – in terms of the operation of the statute – and what is without? So, the presumption drives a construction of the statute, which is – unless Parliament has expressed itself to the contrary – has a territorial operation. So, what we have done in paragraph 48 of our submission – which echoes our originating application below – is simply give expression to that concept, but it is not a substitute for the presumption itself.

The third thing our learned friends say is, this would require this Court – what BHP says would require this Court to give different meaning to the word “person”. That principle of construction can have work to do when it is clear that a given term must have the same meaning throughout a statute.

But here the key terms are not “person”, it is “representative party” and “group member”, and a subset of the persons to whom Part IVA applies may be group members and one or more persons to whom Part IVA applies may be a representative party. We are concerned with the construction of the former term “group member”, not the construction of the latter term. We again say that it is important to bear in mind that the presumption is not to be inverted, that would be contrary to the established authority of this Court.

The next thing our learned friends rely on is the role of section 33ZB. Now, it is not clear to us how that section could rebut the presumption. On the contrary, if it does anything at all it reinforces the correctness of an intra‑territorial operation for this statute and the only way to give this – this is an important point, I guess – the only way to give this statute an interterritorial operation, Part IVA an interterritorial operation, is by construing group members as being persons within the territory because otherwise it has a necessary extraterritorial operation, because section 33ZB reaches in – on our learned friend’s construction, reaches in to the territory of other sovereigns and states and affects the rights of persons within those territories.

It does that. It says the judgment will affect those rights and it will bind them, and so the question is whether Parliament intended to do that, and that is where the Mulheron article bears careful reading, because it reflects the different legislative choices that have been made. And it is not enough – so, what the Federal Court does in that regard is say, well, this legislation is silent so the choice must have been to include everyone, that is to invert the presumption. It works exactly the other way, that if the legislation is silent, unless there is some contrary intention expressed, then it must be read subject to that intra‑territorial – as operating intra‑territorially.

The last thing that is put against us is purpose and context. I think I have dealt with most of what is said there apart from two things. The first thing that is said, and this echoes as something raised by the Full Court at paragraph 53 of their reasons, well, this – Part IVA, they say, was enacted off the back of the Chancery rules. And the Chancery rules apply to – you know, you could bring anyone in the world into a Chancery action.

Now, it is true that in the second reading speech, Mr Duffy refers to Part IVA as being based on the existing representative action in the Federal Court and other State Supreme Courts. That does not mean – it is a non sequitur to say‑ well that means Part IVA must apply to everyone in the world. Whether or not the equitable Chancery rules actually did apply to anyone in the world is something that has not been debated here or elsewhere. Still less, whether the judge may rule ‑in part, to ignore or deny the Federal Court rules in fact of its proper construction ‑ operates extra-territorially. But even if they did, then we say that is beside the point.

Once Parliament chooses to enter the arena, once Parliament chooses to enact its own suite of provisions, it does so against the background of the common law presumption and section 21(1)(b). It behoves Parliament to make its intention, as Justice Windeyer said in Meyer Heine, behoves Parliament to make its intention absolutely clear if it wishes to give these provisions an extra-territorial meaning. And it is not antithetical to the interests of justice to draw a territorial line around the group. It is not obviously the concern of the Commonwealth Parliament to provide an avenue to justice in Australian courts on behalf of such people. But if they want to invoke the jurisdiction of the Federal Court, they are free to do so. The only question here is whether it might be invoked on their behalf.

Can I just, as a final matter, deal with Mobil – because your Honour, Justice Gordon, raised Mobil with me. The predicate of that decision was one that all parties accepted, and that was that the statute did have extra‑territorial effect – that it did operate with respect to persons outside Victoria. That was the very premise of the argument. The argument there was not as to the meaning of the statute. The argument there was to its constitutionality – did it have a sufficient nexus with the State of Victoria – given that extra‑territorial operation? That was made a virtue by Mobil in the case – that it had extra‑territorial effect – at least affected the rights of persons outside Victoria. It was said on behalf of Mobil, it is beyond the competence of the Victorian Parliament to do that.

This Court said no. There was a territorial connection – and it is the one that your Honour Justice Gordon raised with me. The territorial connection was the susceptibility of the respondent to the jurisdiction of the Supreme Court of Victoria. That was the territorial connection. But none of that has anything to say. The question, in this case, was left open because Part IVA was not in issue there. There was no issue about whether Part IVA of the Victorian Act could operate outside the realm of the Commonwealth of Australia, the argument was confined to persons outside Victoria. But the Court was not called on to determine the question which falls for consideration here.

For similar reasons, we say Wong v Silkfield has nothing to say because we are not – the Court’s admonition there that one is not to read into statutory provisions limitations which are not there has to be read alongside the authority of this Court that says, when we are talking about this specific area of operation – operation within Australia and outside, that distinction – that is where this presumption comes in and that is not denied by anything that fell from this Court in Wong v Silkfield. Excuse me, your Honour. Your Honour, my agreement with Mr Gleeson was that I would sit down now, and I would have 15 minutes in reply. If your Honours please.

KIEFEL CJ: Yes, thank you, Ms Harris. Yes, Mr Gleeson.

MR GLEESON: Thank you, your Honours. We would urge the Court to keep separate three questions. One is the operation of the substantive provisions in suit which create the causes of action. The second is the conferral of jurisdiction upon the Federal Court in the matter. And the third are the powers and procedures of the Federal Court in that context.

The appellant’s submissions ask you effectively to put to one side the first and second stages as irrelevant because they ask you in paragraph 2 of their outline to go straight to and accept their rather contorted expression of the object and purpose of Part IVA. But could we start at the first and second propositions, which ought to be common ground, but which do inform the ultimate question. If your Honours have volume 2 of the authorities, the underlying statutes commence at tab 5 at page 327 of the book, section 12DA of the ASIC Act imposes the norm that:

A person must not, in trade or commerce, engage in conduct in relation to financial services that is misleading or deceptive or is likely to mislead or deceive.

“Trade or commerce” is defined in section 12BA to mean:

trade or commerce within Australia or between Australia and places outside Australia.

That is the norm of conduct and then the cause of action is created by section 12GF in terms that:

A person who suffers loss or damage by

Such:

conduct –

is entitled to:

recover the amount of the loss or damage –

against the contravener or a person involved. So, pausing there, a person in section 12GF, it is accepted by both parties – it means what it says – any person. There is no attempt by BHP to say that that has to somehow be read down to exclude persons by reference to personal characteristics – whether they be residents, domiciled, or so on.

So, at the level of the substantive obligation and cause of action, Parliament has chosen, for good reasons, to make the cause of action available to any persons who suffer the loss or damage from the contravening conduct. If your Honours go back to page 326 – the previous page – Parliament has separately created, or established, an extra‑territorial effect for this division in defined circumstances where the conduct is done outside Australia by identified persons – subject, in certain cases, to the Minister’s consent.

So, Parliament has expressly delineated the core provisions which have no extra‑territorial operation and the extended provision which do in certain circumstances. In the present case, BHP is sued because of conduct said to be done, wrongfully, in Australia – misleading the Australian Stock Exchange. BHP is, of course, an Australian company. So, there is no question at the level of the substantive legal norms that this is intra‑territorial. It is intra-territorial, notwithstanding the persons who can claim, may or may not have some foreign connection – however that connection be identified – to take up your Honour, Justice Steward’s question, which I will come back to. That is the fundamental parliamentary choice at the level of the statutory norm.

Your Honours may contrast that – and I will simply give the reference at this stage to the US Supreme Court decision relied upon by BHP, which is Morrison – which is in volume 5, at tab 35 – where an equivalent provision in the United States, section 10B of the Exchange Act was held not to operate extra‑territorially with the consequence that the wrongdoing needed to occur in the US or involve US‑listed securities. That decision is a useful discussion in the United States of the presumption, and the Court held the presumption applied and was not rebutted – but why? Because the wrong occurred in respect to NAB shares listed in Australia and not in the United States.

So, ordinarily, perhaps almost always, a party like BHP trying to confine the case against it by the presumption, would be attacking this level of the statute – the legal norm. It does not do so in this case. Your Honours, for completeness, at Tab 8, the other legal norm in play is found in the Corporations Act, particularly page 352 section 1041H which says a person shall not, in this jurisdiction, engage in misleading conduct in relation to financial products gained intra-territorially. Again, the alleged wrong here is in the jurisdiction and the remedy is completed over the page, Section 1041I, and 1317HA on page 356.

Your Honours, that lead allows us to say that in constitutional terms and in terms of section 76 and 77 that your Honour Justice Gordon raised, the matter in the present case, arising wholly under Australian law, is the controversy whether BHP is liable to its shareholders and those of its dual‑listed company, and if so, which, for the damage they allege to have suffered by BHP misleading the ASX in Australia.

As an aside, I mentioned the dual‑listed entity, that has nothing your Honours need to deal with in this case. The Court looked at the dual listing in the tax context in BHP Billiton v Commissioner 270 CLR 60. It is not relevant here, because the question whether the shareholders in PLC can take advantage of the substantive remedies, which is a question of causation, has been left for the trial, because the strike‑out application failed. That is in the core appeal book, pages 97 to 99. So, in the submissions you have heard this morning and in my submissions I will, if it is convenient, ignore PLC and simply focus on BHP’s shareholders. So, that is the first stage and that creates the matter.

The second stage is the conferral of jurisdiction in the Federal Court to hear the claims for damages by all shareholders. That is in two places. Firstly, it is in – this volume 2, again – it is at the back of tab 8, page 361. Section 1337B of the Corporations Act confers jurisdiction:

on the Federal Court of Australia with respect to civil matters arising under the Corporations legislation.

Of course, in an overlapping fashion, section 39B(1)(a) of the Judiciary Act does the same – tab 12, page 389. So, pausing at the second stage – and this is not contested by Ms Harris, but she says you can just treat it as irrelevant – the Federal Court has subject matter jurisdiction to hear the claims in this matter. As to the other aspect of jurisdiction, it has personal jurisdiction over BHP under traditional principles – Laurie v Carroll [1958] HCA 4; 98 CLR 310, at 323 – BHP present in the jurisdiction at the time of service and submitted to the Court’s jurisdiction.

We then come to the third level, which is the powers and procedures of the Court. What BHP tends to pass over is that every shareholder – wherever they be resident or located – could avail itself of the jurisdiction of this Court in three ways before we even get to Part IVA. Firstly, obviously enough, any shareholder could bring an individual action. Secondly, the shareholder could bring a joint action with other shareholders under the relevant Federal Court Rule – which is Part 9, Rule 9.02. The Rules are in volume 2, at tab 11.

So any number of shareholders, wherever they be resident or located, could join together under rule 9.02 on page 385. And, thirdly, under rule 9.21, which is the old representative action in equity, one shareholder could start the action on behalf of all of them provided they satisfied the same interest test. What that allows us to say is that the claims of all BHP shareholders, wherever they be resident or located, are claims in which the Federal Court has subject matter and personal jurisdiction and claims that could be brought by any of those procedural means.

That allows us to situate the purpose of Part IVA. To come to your Honour Justice Steward’s question, the purpose is not what is set out in the appellant’s outline at paragraph 2 but, rather, it is to provide a more modern form of the action in rule 9.21, improving the powers and procedures of the court, in particular dealing with the identified defects of the old equity action.

That statement of the purpose of Part IVA can be supported by three authorities of this Court. The first is Wong v Silkfield which is found in volume 4 at tab 30. In paragraph 1, the Court says that Part IVA creates new powers and confers upon the court new procedures:

in relation to the exercise of jurisdiction with which it has been invested by another law made by the Parliament.

The Court then identifies the jurisdiction in respect to matters created under the statute, which is the sort of approach I have attempted to advance this morning. So the territory we are in is a statute creating new powers and procedures for the Court in matters in which it already has jurisdiction.

The particular purpose of improving upon the problems of the equity action is identified at paragraph 12 and paragraph 14. At paragraph 28 the Court says that it was not the purpose of Part IVA to narrow access to the new proceedings beyond that which applied under the old regimes. For that reason, when construing section 33C(1), which is one of the key provisions before the Court in this case, one did not take a narrow approach which would have created more problems rather than less problems over the equity action.

Your Honours, the second of three authorities is Mobil, which is in the same volume at tab 32. Ms Harris is, of course, correct that the particular argument being advanced was at the level of the legislative power of the state of Victoria to create what the challenger argued was a national class actions jurisdiction. However, the relevance of it for today is that Mobil addressed what, in substance, is almost the identical set of arguments you have heard. The manner in which it disposed of them is highly informative of the purpose of Part IVA and of how it is to be understood.

Your Honours, commencing with the Chief Justice’s judgment at paragraph 6, we have drawn attention to the statement which is unequivocal at the end of the paragraph that, under the old equity action the persons represented were not necessarily residents of the local territory. There was a very slight attempt in the last 10 minutes this morning by the appellant to say that issue is doubtful, not before the Court, uncertain. We would submit that what the Chief Justice has said in that paragraph is accurate, and we therefore reach a position that the old equity action was never bedevilled by a limitation that the class needed to be local residents. It would be surprising in the extreme, indeed bizarre, if Part IVA narrowed that position without that ever being identified as an evil.

EDELMAN J: Is that because no such presumption could ever arise in relation to them? Or, is that because such presumption, whatever it might be, is rebutted?

MR GLEESON: It is more the former, your Honour. There is one statement your Honours may have picked up in Justice Moshinsky’s judgement which the Full Court did not disagree with but they did not expressly pick up, which was once we are down at the level of practice and procedure of the Court, all questions of extraterritoriality have already been dealt with, one way or the other, and for the Parliament to legislate as to the powers and procedures of the Court, can never raise a problem with the presumption. I am referring, in making that submission, to the pithy statement by Justice Moshinsky at paragraph 102, about line 30 on page 45 of the core appeal book, where he said that:

The territorial reach of the Court’s powers under Pt IVA is . . . necessarily as extensive as the substantive laws which confer jurisdiction on the Court in relation to particular claims.

So, in the present case, as I have sought to show, this particular class action has no extraterritorial element at the first level of the substantive causes of action. It is about wrong done in Australia allegedly by an Australian. But it is possible there could be class actions which, at those higher levels of substantive law jurisdiction, may engage extraterritorial conduct. If the wrong was done outside Australia but done in trade and commerce under the ASIC Act, if the Minister consented, the damages claim could be brought. So the substantive action might be called extraterritorial with the presumption rebutted.

At the level of personal jurisdiction, unlike the present case, which is Laurie v Carroll, service might have been outside the jurisdiction under the rules. But once all that is done, when one is looking at the powers and procedures of the Court, our short submission is it can never attract the presumption and one is never looking for a contrary intention. All one is doing is just construing the statute under the ordinary principles, and if that approach is taken, then the appellants must fail.

Your Honour, just to complete Mobil, I draw attention to paragraph 6 of the Chief Justice. At paragraph 10 about 10 lines down – although this is uttered in the context of a challenge on a constitutional basis, the analysis is important in disposing of BHP’s argument. His Honour says:

The territorial connection between Pt 4A [of the Victorian Act] and Victoria is neither remote nor general. It is direct and specific. It concerns the jurisdiction of the Supreme Court of Victoria. It only operates in relation to claims in respect of which the Supreme Court otherwise has jurisdiction.

So, in terms of your Honour Justice Gordon’s question, jurisdiction is the lynchpin by which one then moves to the powers and procedures under this provision, and that can never raise a question of extraterritoriality. At the end of that paragraph, his Honour turns a bit more to the facts of the case, as I have sought to do, which is no one could ever call the jurisdiction in that case longarm because it was about Mobil supplying an effective product in Victoria, and the same can be said here.

But paragraph 11 is important because it says that the Mobil argument, by focusing on the group members:

inverts the usual principle as to the jurisdiction of a court –

citing Laurie v Carroll, and that is very much the argument you have heard today. I would also rely upon paragraph 12.

GORDON J: Is that because the focus there is upon the defendant rather than upon the claimants?

MR GLEESON: Yes. You have heard a number of times today that the idea that one needs to find somewhere how the court exercises jurisdiction over the group members, but that involves the inversion which is being discussed in Mobil, and it also completely misunderstands the difference between the exercise of power by the court over the defendant and that over the group members. The defendant is hailed to the court under compulsion and can have its rights litigated, and will have them litigated whether it likes it or not.

The group members are in a substantially different position. They are permitted through Part IVA to have their claims vindicated in a convenient manner. They have a right to opt out if they do not like it. Under modern class action practice, they will usually have the ability to register before there is a settlement. If the matters goes to judgment, they will probably have to, in some way, positively assert their claim before they get damages, and they are otherwise relieved of all of the usual burdens of a party to instruct lawyers and pay costs, et cetera. So whether those persons are resident or located here or anywhere else, the relationship between them and the court is fundamentally different to that of a defendant hailed before the court.

In the joint judgment, I just wanted to quickly draw attention to several places. Firstly paragraph 34, where the jurisdiction and the claims point is carefully analysed. At the end of 34, the judgment says that in reference to Part IVA – see footnote 135:

By this kind of action the claims that are made, or could be made, against the defendant by all those in the “class” or “group” that is identified in the proceeding would be decided.

The emphasis “could be made” is in the judgment and it is an appreciation that what we are looking at is if the court has jurisdiction over the claims and if it already necessarily has procedures by which the jurisdiction could be exercised, what Part IVA is doing is providing another better procedural set of powers to enable those very same claims to be vindicated. Without reading it, I draw attention to paragraph 43. But coming to 49 and 50, the argument in 49 – this is the national court argument – is basically the theme you have heard this morning under a different legal framework. Mobil said the residents were being drawn in from other States or Territories:

their claims had no necessary connection with Victoria and they had not invoked the jurisdiction of that Court. This . . . denied these persons the chance to bring the claims in the courts of the State or Territory in which each lived and bound them in the . . . proceedings over which they had no control.

So you have heard that theme. At paragraph 50, the judgment says that is not an accurate representation of what Part IVA does:

The provisions of Pt 4A do not seek to make the Supreme Court of Victoria a national court. They do not deny anyone the opportunity to institute proceedings in any other court.

It is wrong to say they have no control over the proceedings. In paragraph 51:

Pt 4A does not compel the unwilling to continue to remain a group member.

They may opt out. The next sentence is important:

in affecting the rights of those who know of the proceeding and those who do not, a proceeding under Pt 4A is no different from representative proceedings of a kind common in the State Supreme Courts since federation and in their colonial predecessors.

So, we are in the same genus as the old equity action. The Parliament is seeking to improve it. It is most unlikely it would introduce a limitation never seen before for no obvious purpose.

Finally, I just note that in paragraphs 59 to 61, when the Court identifies at 59, why the proceeding is in and for Victoria – that is, using the language of the Constitution Act – it is because the Court’s authority to decide the matter stems from the amenability of the defendant to its process and the ultimate conclusion, at 61, mirrors those earlier words in italics about the claims that could be made. So, a law which regulates procedure for dealing not only with claims that are made, but claims that could be made against the defendant that is amenable to the jurisdiction, is a law in and for Victoria. We would say a law of that character is a law that never attracts the presumption. Is that a convenient time, your Honour?

KIEFEL CJ: Yes, thank you, Mr Gleeson. The Court will adjourn until 2.15 pm.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.14 PM:

KIEFEL CJ: Yes, Mr Gleeson.

MR GLEESON: Thank you, your Honours. The third of the cases I mentioned bearing on the object or purpose I will just give the reference to, it is BMW v Brewster. It is paragraph 82 of the majority judgment, which is at volume 3, tab 16, and the underlying ALRC report is in volume 6 at tab 40. Your Honours, I am up to paragraph 4 in our outline, but I thought it might be helpful, or I hope it is, if I just turn now and gave you our construction of the statute, and then I will come back and deal with whatever is left on the interesting questions about the presumption, if that is a convenient course, your Honours.

So if your Honours have volume 1 at page 164, commencing at section 33A, our first observation is that the word “person” or its cognate “persons” is used five times in the Definitions section. It is used of the respondent, being the person against whom the relief is sought. It is used of the group of persons on behalf of whom the proceedings is commenced. It is used of the representative party who commences the proceeding. But also, if the case veers into a subgroup under section 33Q where the issues are not all common, it is then used of the representative of the subgroup as well as the persons in the subgroup. Now, ordinarily, of course where the same word is used more than once, indeed on five occasions, both in a section and in a section which governs of the operation of the whole Act, one might think it will have the same usage unless something very strong appears to the contrary. So that is the starting point.

The second submission concerns section 33C itself and questions of the Court – including Justice Gageler this morning. When one looks closely at section 33C(1), it establishes three conditions. The first is that:

7 or more persons have claims against the same person –

At that stage, ordinarily one would think, with the generality of the language, one is simply doing a numerical exercise in identifying are there that number of persons with claims against the same person. There is nothing in paragraph (a) to suggest any further inquiry into who the persons are, rather than whether they have the claims. Their personal characteristics are irrelevant to paragraph (a) – save for whether they have the claims. Then, in paragraph (b), there is a tighter condition attached to the claims:

the claims of all of those persons –

so that is all of the seven‑plus – must be:

in respect of, or arise out of, the same, similar or related circumstances –

So, there must be a factual connection between the claims. So, the whole focus of (b) is on that aspect of the claims. Again, it is not about the personal characteristics of the persons. Then, under (c), there is a further – even tighter – condition that:

the claims of all those persons –

that is, the persons identified in (a), must:

give rise to a substantial common issue of law or fact –

The entirety of those three conditions are about the claims and about ensuring that there are the relevant number of people – seven, or more – with those claims. Then, the critical part – which the appellant does not grapple with – is that the:

proceeding may be commenced by one or more of those –

seven or more:

persons as representing some or all –

of those seven or more, persons. That means that the authority to commence is given only to a person who otherwise falls into the group that have the relevant claims.

Now, there was a lot of talk this morning about buckets, one bucket, two bucket, different buckets, but the representative can only be drawn from the persons with the claims which have the relevant commonality, and the central reason for that was that it was the commonality of interest arising from the commonality of claims which was thought to justify allowing one to represent all, to become the flag‑bearer for the group and that the common interest would ordinarily lead to good representation of the group.

Now, it follows from that that one of the submissions this morning must be wrong. The submission this morning is that the representative need not be a resident of Australia or whatever the other connector is. The representative can be anyone, it was said, because the representative will have submitted to the jurisdiction of the court by starting the action and that is good enough to overcome the presumption. But if the representative can be, for instance, a resident of the United Kingdom, then textually the group must be allowed to include persons from the United Kingdom, otherwise the person cannot be the representative. So, for that reason alone, the limits on the person must be the same in respect to the representative and the group.

GORDON J: Is that to say any more than that the last two lines that apply to all three conditions means ‑ ‑ ‑

MR GLEESON: It is a little more. It is that it applies to those conditions.

GORDON J: Sorry, that was not my question.

MR GLEESON: Sorry, your Honour.

GORDON J: The last two lines apply to the three conditions, which picks up the point you just made about the commonality, but it is more direct than that, is it not? Do you not read those last two lines as saying there is a group of persons who are all the same, of which one will represent some or all of them?

MR GLEESON: That is the submission, and the representative cannot be selected from outside the group. So, if the representative can be a non‑resident, as has been accepted, the group must be able to include non‑residents and, therefore, one is drawn very quickly back to thinking that “person” means the same thing when it appears in any of the five ways defined in section 33A. It is the same for the respondent. It is the same for the representative or the sub-representative. It is the same for the group or the sub-group.

The third contextual submission is, when one moves down to section 33C(2), which is the permission for the proceeding to be commenced even though it may have these various features to it. This is where we see one of the substantial improvements over the old equity action, that it was thought that some of these matters might sever the commonality of the interest and destroy the representative nature of the action. The Parliament has said no. None of those matters destroy the commonality and everything hinges on the three conditions in subsection (1). Your Honours, the fourth submission concerns section 33D, which has not been dealt with this morning. This tells us that:

A person referred to in paragraph 33C(1)(a) –

and that is a deliberate reference – it is not 33C(1), it is 33C(1)(a), so that is a person in the seven or more persons with claims against the same person, if they have standing to commence their own action, they have the standing to commence it on behalf of all of the other persons. And so it tends to confirm again that, what is in the last two lines of section 33C(1), that the representative is drawn from the group, and the standing of the representative is taken to constitute standing for the whole group.

So that, even though each member of the group is ordinarily not a party – I will come back to that – the standing which a party would have is supplied by the standing of the representative. And so, the Parliamentary conception here is tolerably clear. This is a relaxation upon what you might have to do to become a full party, but you are relevantly treated as before the court through this procedural device.

Your Honours, the fifth textual submission concerns sections 33E and 33F. What the Parliament has done in these provisions is firstly state a general rule that consent to be a member is not required. But then the Parliament has identified two categories of persons who, because of their special position, receive additional protections in the action.

In answer to your Honour Justice Gageler’s question this morning, we would submit that section 2C(1) of the Acts Interpretation Act does apply, and “persons” includes body politics and bodies corporate, and section 33E(2) is telling that certain categories of body politics and body corporates cannot be represented without their consent. Likewise, but slightly differently, section 33F is recognising that there is a category of persons for whom the court takes special concern - persons under disability – and they are protected in a particular way that they do not need a next friend or a committee merely to be in the group, but they do need one to take a step in the proceeding.

What the Parliament has not done is to say, well, there is a third category of persons, persons who, because they are non‑residents or non‑domiciled or whatever the test is, need to have a special ability to consent or otherwise be protected in the action. That is where the critical difference is drawn with the United Kingdom provision which was relied upon this morning. If your Honours have the Mulheron article, which was put before you as the bible, which is in volume 6 at tab 42 – Professor Mulheron – on page 1774 of the book, page 448 of the article, the UK provision – section 47B(11) of the competition statute is set out.

The express decision made in the United Kingdom in paragraph (b) was to provide a special protection or position for a category of persons who may not have a sufficient connection with the United Kingdom, but what it did, as one would expect in such a provision, is to provide a statutory test for who were the persons who would have this special protection. It applied the concept of domicile in the United Kingdom, so it picked up that body of common law. It then said:

domiciled . . . at a time specified –

and the date specified – the domicile date, you can see from footnote 17, is then defined as a date which will be specified in a particular court order. So, the UK provision, as you would expect if you were seeking to carve out and deal with some people differently, determined a statutory test, determined a date to apply it, and at least there were then criteria by which one could decide if the people were in or out, and then those people had an opt‑in arrangement, not an opt‑out arrangement.

GORDON J: Can I ask you about that? Do you take any support for your position from the fact that this is an opt‑out regime as distinct from an opt‑in regime, as addressed in the second reading speech?

MR GLEESON: Yes. It is critical that – the Parliament could have chosen opt‑in – they could have chosen opt‑out – or, perhaps, like the UK, they could have chosen a hybrid. The AIC Report went into the topic in great detail – there were benefits and burdens of each. The Parliament said, the overall benefits of access to justice and efficiency of court procedure are better achieved by the opt‑out regime which applies to everyone. That is one aspect of what we rely upon.

The other aspect is, by choosing opt‑out, the Parliament has said we are respecting the autonomy of all group members. They will, or should – subject to the imperfections of notice – have the chance to decide if they wish to pursue their claims elsewhere. That decision was a general decision applied across all the people who had the claims with the requisite commonality. If one wanted to create a hybrid model, one would have needed, in short, the language you see in the current United Kingdom statute. You still would be left with factual questions as to where people were domiciled, but at least you would know what the legal test is and when you had to answer it.

We have given the Court – in the tax context – the Court’s decision in Bywater, which is volume 3, tab 17[2016] HCA 45; , 260 CLR 169 – where, between paragraphs 39 and 41, in the plurality – and paragraphs 112 to 113, your Honour, Justice Gordon – there was discussion of how, even when one has a statutory test, one may then have intense factual inquiries as to the application of the test – in that case, central management of control, in a tax context. But, at a minimum, if the Parliament has not identified a test or a date at which it is to be applied, it is a very strong indicator it does not contemplate such an inquiry.

Your Honours asked some questions this morning about impracticality. This scheme would grind to a halt if defendants could say that the group did not include persons who did not satisfy a test which you cannot even find in the statute. Group members – in terms of opt‑out – may not even know if they needed to consider opt‑out, because they may not know whether they satisfied the test which had not been stated in the statute.

Your Honours, the next submission is about section 33H, and we have separately provided the Court and our opponents with a copy of the Full Federal Court decision in Bright v Femcare [2002] FCAFC 243; (2002) 195 ALR 574, and we draw attention to your Honour the Chief Justice’s discussion between paragraphs [124] and [128] about section 33H and its role in relation to section 33C.

Without oversimplifying or paraphrasing too much what your Honour has said in those paragraphs, with respect, we take from it, paragraph [126], that the whole focus of section 33C is upon the claims that they have to be – those conditions have to be met by reference to the pleading made by the applicant and section 33H is intended to facilitate that assessment.

So, at the beginning of the proceeding, the Parliament intends that in a fairly practical way the applicant will be able to say these are the members I purport to represent, these are their claims, and these are the common questions of fact and law, so that if there is any problem that can be dealt with at the outset and by a fairly clear standard. Now, the appellant’s approach, reading into all this, some are unspecified, inquiring into residence or otherwise at an unspecified date would destroy the certainty in this part of the process.

Another matter adverted by your Honour in those paragraphs is that while the front end of the process is intended to be fairly straightforward, as the case ensues there may be developments in the case which mean that it is not appropriate to continue as representative action when more is known about it, but those types of inquiries will be made down the track and will be governed by later provisions in the part, including section 33M.

Continuing on with section 33J for a moment, the opt‑out, the court fixes the date, the group member may opt out by that date by written notice. That cannot work unless there is a clear means to know who the group members are, and so that critical part of the process will be rendered uncertain on the BHP construction.

I then want to draw attention to three or perhaps four provisions which sit in the same sphere, which is 33M, 33N and 33P. A submission was made this morning, about which your Honour Justice Steward asked a question whether there was a separate strand in the argument that life would be so difficult with this scheme with foreigners, to use it loosely, that Parliament must have intended not to include them. Whether life would be difficult with foreigners will depend on the case, and whether it would be any more difficult for them than others will depend on the case, and whether their issues are so different as to render the proceeding inappropriate will depend on the case.

Of course, in the present case, which is a shareholder action, BHP is not heard to say there is the slightest difficulty at all, because there is a share register, we know who all the shareholders are, they all will have an address, an email address or a postal address, and notice will be fairly easy whether they are here or there. But, if issues should emerge in any case, whether the practical issues or that the commonality starts to be severed once one goes through the case, then the short submission is the court has ample power in these provisions to deal with the problem, whoever and wherever the group members may be. So, to give some examples, in 33M(b), if the respondent said the costs of identifying the group members and distributing the money are excessive, for example, because of where they are in the world, that could be taken into account in an appropriate remedial order. Under 33N ‑ ‑ ‑

GORDON J: The remedial order being a narrowing of the group?

MR GLEESON: Yes. And if the order were not to continue under this Part, well, then, what would be left is the applicant plus anyone who wished to become a co‑applicant, or otherwise they start a separate action.

GORDON J: Sorry, I meant to say narrowing of the group being a narrowing either of the description of the commonality or abandonment of the representative proceeding itself.

MR GLEESON: Yes, and so that is available. My submission is only that the power is there to deal with the problem if it arises. The problem, in many cases, will not arise. If it arises, it may not be to do with residence, it may be to do with the relationship between the group and the action. One of the earliest cases trying to grapple with this, Justice Beech‑Jones in the Supreme Court, was a case called Lam, which was where the group consisted of passengers on a plane and many of them were foreigners and difficult to identify, and his Honour did not apply the presumption or exclude non‑residents per se, what he did was to look at whether he should use these remedial powers to fashion an appropriate order. So that is 33M.

33N, which is an interest of justice test, allows for a number of criteria: (a) is to do with excessive costs, (b) is alternative relief, (c) is efficiency, (d) is otherwise inappropriate. So, if there is a problem, and proved on evidence to be a problem, the court can stop the representative proceeding in its track.

I should also perhaps have mentioned 33K, which, although it is headed “Causes of action accruing after commencement of representative proceeding”, it has been construed more generally to be a power for the court on the application of the representative to amend the group, and that is often used to narrow the group definition, and could do so in an appropriate case.

STEWARD J: Mr Gleeson, is it an aspect of this argument that ultimately, whatever difficulties there might be that we are dealing with foreign members of a group, the alternative is there will be equal difficulties in working out who is a non‑resident?

MR GLEESON: Well, equal or greater.

STEWARD J: Or greater?

MR GLEESON: Or greater, and on the BHP approach we have no statutory test by which to carry out the exercise. On this approach we have ample statutory power governed by criteria which can be applied by the court under the judicial method. Of course, your Honours will recall that one of BHP’s three strands to shut the non‑residents down was such a discretionary case where they argued for an order – which is no longer pressed in this Court – that, as a matter of discretion, the foreigners should be excluded under section 33ZF. Justice Moshinsky looked at that and said that case was not made out at this stage, and so there is plenty of power.

Your Honours, I did want to draw particular attention to the follow‑on provisions – which are 33P, 33Q and 33R, and, perhaps, 33S. What happens if the Court makes one of those orders under 33L, M or N – that is, the representative can continue the action as their own action but, on the application of a group member:

the Court may order that the person be joined as an applicant –

So, if I am in the group, but the representative nature of the proceeding now must stop, I may apply to become a party with the representative so that what was a Part IVA action will now become a Rule 9.02 joint action.

There was a strand in the argument this morning to suggest that, because you are a foreigner, this part allows you – and binds you – to an entire determination of your rights where, if you have not opted out, you will never play an active part in the proceeding. You will never submit affirmatively. You will never show you wish to participate in the action. There are a whole variety of ways in which – particularly, down the back‑end of the action – group members may be required to take positive steps to bring their claims forward. If the BHP approach was correct, then the foreigner – because they are outside the group in the beginning – could never take up section 33P. Then, if your Honours look at section 33R – similarly, if the matter starts to move the down the track of non‑common issues:

the Court may permit an individual group member to appear –

for the purposes of their individual claims. That happens all the time if, in particular, the matter goes past a judgment on the common issue, and one is now dealing with separate claims. So, here, we see the group taking an active role in the matter, at the relevant time, and we would say the group – wherever they be resident, in this scenario – come forward, actively. In 33S, if it cannot be dealt with under Q or R – so, that is, if you cannot fashion a procedure to allow the group member to appear in the proceeding for the purpose of the issue – you may direct the group member to start a separate proceeding – or a separate representative proceeding.

So, of the various ways this scheme can play out, it may end up with separate proceedings by members in the conventional old‑fashioned sense to deal with particular issues as part of the appropriate management of what had commenced as a representative action. All of that consistent with the purpose of the part, to provide efficient means of solving these claims, plus protecting the court’s resources, because the point BHP has never grappled with today or in writing is that, if its argument is correct, what are the foreigners meant to do?

If they wish their claims to be heard, they have to either bring individual claims in the Federal Court or joint claims or they have to bring Rule 9.21 old‑fashioned representative actions. So the Federal Court, in respect to a single matter that I have identified, is invited by BHP to have multiple pieces of litigation; whereas what this part is all about is saying provided you get through the section 33C hurdle, it will proceed forward under the court’s control as a single representative action, wherever that is possible. But if it needs to break down into individual claims, the court will control that through the criteria in the statute.

Section 33T, the adequacy of representation provision, would be a classic provision which would protect any group member including a foreigner who says, this representative is not adequately representing my interests, e.g. because they are not fully informing themselves and the court of my special circumstances.

Your Honours, when one comes to settlement under 33V, a large body of jurisprudence has built up in the Federal Court as to notifying the group members of the settlement which will happen under 33X(4), and of appointing contradictors if there are issues that need to be advanced which reflect some group members more than others. If the residence of group members is a relevant factor – usually it will never be – it can be addressed by the court through those procedures.

Your Honours, in respect to settlement, just pausing there, your Honours will know that there is some dispute between the intermediate appellate courts about the process of registration, which fortunately you have been relieved of so far. The latest word from the Full Federal Court is that the New South Wales Supreme Court decision in Wigmans is plainly wrong. You are not asked to decide any of that today. But what does emerge from the registration cases is that a procedure has been developed in the courts, the parameters of which are still to be finally determined, whereby at the stage of settlement the whole of the group may be asked to indicate through registration whether they want to share in the kitty and if they are given that opportunity and they do not register then that may be a reason why the settlement proceeds in such a fashion that their claim is barred under section 33ZB that I will come to.

Now, you do not see registration in terms in this statute, but it has been built up through a series of provisions as being part of the court’s powers. What that tends to indicate again is that every group member, wherever you be resident, will likely at some point of the matter to have to show your hand. That may be at the opt‑out stage. It may be at the registration stage. It may be at the post‑judgment stage. So the judgment stage is 33Z and ZA and under 33Z(2) and (4), if the case has gone to damages the court will have to provide directions as to how group members establish their entitlements to share in the damages and there will be notices to be given and there may be a fund under 33ZA, et cetera.

So for all group members, wherever you be resident, or your personal characteristics, the scheme has provided for the way in which, and the time at which, you have to declare an active involvement in the action, and it has treated everyone the same way. And against a scheme with the detail and the complexity I have been to, if it was intended that residence created a different set of rules, it is the overwhelming consequence that the Parliament would have had to provide for expressly.

The notice provisions I just passed over – 33X and Y – there was a brief submission this morning of 33Y(4) that press advertisement, radio or television broadcast suggests the notices are only to Australia. I think that submission can be answered without me having to provide the answer. Clearly, what is happening with 33Y is, the Court approves the notices under subsection (2) and under subsection (3) – who is to give it, how it is to be given – the Court approves. The whole point is to try and get an effective notice to the maximum number of the class. That may provide difficulties in some cases; in the present, it will not. It is the job of the applicant – and, we would say, the respondent, given its duties to the Court – to propound the most effective notice in the given case.

GORDON J: Or method.

MR GLEESON: Or method. If, at the notice stage, it comes to the Court’s attention that 99 per cent of the class are based in a foreign climate and there is no effective means to be sure you will be getting the notice to most of the class, that is the very time at which the Court might say, I am now considering exercise of my powers – why am I allowing this action to go ahead if, when I get to a settlement or a judgment, I am being told most people will not be able to make effective decisions whether to participate or not. So, all that is dealt with through those powers.

Your Honours, that leaves section 33ZB, which the appellant says is the clincher of its case. This provision was properly and correctly analysed by both courts below. What it says is that, as a matter of Australian law, the judgment will bind all group members affected if you have not opted out. That is designed to bring finality as a matter of Australian law. The underlying theory is, if you have not opted out, you have exercised your autonomy and you are bound.

BHP refers to a concession which it says we have made in paragraph 32, or thereabouts. What we conceded was the obvious, which is that whether that statement of Australian law will be effective in a foreign court. If someone were to attempt to get around the Australian judgment, will depend upon the law of the foreign court. If that court gives effect to this aspect of Australian law, then finality will be reached everywhere. If it, under its own rights, does not give effect to it, then, to that extent, one is in the position one is always in when we do not have a universal world court system.

EDELMAN J: Your concession is that the application of foreign law in a foreign country depends upon foreign law?

MR GLEESON: Yes.

EDELMAN J: Not really a concession.

MR GLEESON: It is not much of a concession to say that Australian law does not bind, of its own force, in every country of the world. That is their concession.

GORDON J: Do you put it in the reverse? What you say is that what 33ZB does is a matter for Australian law?

MR GLEESON: It is a matter for Australian law and, whatever version of the presumption we are facing, the presumption does not say that the Parliament is presumed never to have legislated in a way which might create a risk that the ensuing judgment will not be recognised and enforced in any other civilised legal system. There is always the possibility of different approaches being taken at the recognition and enforcement stage.

GORDON J: As Talacko and that lovely line of cases demonstrated.

MR GLEESON: Yes. Your Honours, just finally on the Act. In 33ZC, when it comes to appeals, subsection 6:

If the representative . . . does not . . . appeal within the time, another member of the group or sub-group may . . . bring an appeal as representing the group members.

So, it is yet another instance where a person moves from being simply a passive group member to a more active role in the proceeding. Indeed, as this is worded, as a matter of right, not discretion. There is a right to appeal and become a full party in the appellate jurisdiction of the Federal Court and that right, we would say, is available to any group member who has satisfied the conditions.

33ZE is an important part of the scheme, which is that the limitation period is suspended as soon as the representative proceeding is commenced and then does not start to run again until opt out or determination of the action. Again, that requires absolute certainty as to whether you are a group member. It cannot sit with the BHP approach.

33ZF was the provision which was relied upon below but not here. It has limits, as we know from earlier cases, but it is nevertheless a broad provision designed to deal with problems if they are necessary to ensure justice is done in the proceeding. It is yet another way of dealing with any problems that might arise.

Your Honours, our submission thus far has been that the presumption has nothing to say about the statute, secondly, if one reads the statute, “persons” means persons, with its generality and there is no reason for any narrowing of that, just using the ordinary principles of statutory construction. Could I then just deal with the remaining matters on our outline.

At paragraph 5, our proposition is that the presumption is but one of a range of statutory construction principles brought to bear to determine the reach of the contested provision. That wider range of principles too familiar to the Court to cite, we have summarised some of them at paragraph 39 of our submissions. We submit that the classic case where the presumption arises is where you cannot find in the statute an express provision connecting the subject matter to Australia. But where the presumption arises – of itself, it is going to provide no answer as to precisely how the confinement to Australia is to occur, or how many times that confinement is to occur.

Leaving the criminal law aside, usually the confinement is by a single integer. In the present case, the integer that we contend for is that which we have identified at paragraphs 9 and 10 of the outline, which is that the part only applies where seven or more persons have claims which satisfy two requirements: firstly, the three requirements of section 33C, and, secondly, that the Court independently has both subject matter and personal jurisdiction, and that those are the integers which confine the part to Australia, with the result that either one says the presumption has no application, or that the presumption has been complied with.

EDELMAN J: Mr Gleeson, does that mean your submission – particularly in paragraph 5 – that properly stated or properly understood, the presumption is only concerned with subject matter jurisdiction and not with territorial or personal jurisdiction to the extent that those dimensions are independent of subject matter?

MR GLEESON: I hesitate to go quite that far, but usually that will be the case. The presumption arose in the context of subject matter jurisdiction. If one thinks of the cases that the parties have presented on the authorities, they really fall into three categories. The first two cases are Niboyet and Morgan v White, which were cases about the status of persons’ status. One was about divorce and the second was about bankruptcy. So they were two cases where the presumption had potential application and so the subject matter at question was the status of a person which could have received different answers in different jurisdictions. So that is the first two.

The next group of cases are Barcelo and Wanganui, which are about obligations, about laws discharging or varying contractual obligations. So the subject matter was the obligation, and there was a question of which obligations. So that is those. The third group presented, which is Meyer Heine, Ex parte CSL and Reg v Foster, are all cases under the trade and commerce power where what is being regulated is conduct of some sort. So that is the territory they have been in. All the statements in the cases have effectively been uttered in those contexts. There is no case that the parties have found from any common law jurisdiction which has applied the presumption to the powers and procedures of a court in a matter in which it otherwise has a jurisdiction, and there are no cases where it has been applied, as it were, to the persons on the plaintiff’s side of the record. So that would be my answer, your Honour.

In terms of the authorities we wish to take the Court to, I really want to mention five. The first is Justice Leeming in DRJ v Commissioner of Victims Rights which is in volume 5, tab 33. The reason we go to this case at intermediate appellate court level is that Justice Leeming has surveyed many of the questions about the scope of the presumption both at statute and common law and he has particularly grappled with one issue that may arise in this case, which is how many times do you have to apply the presumption, because the effect of BHP’s argument is, even if we are right that the claims and the jurisdiction are all linked to Australia, as soon as you see this extra word “persons” you have to apply the presumption yet another time.

Your Honours, in that case commencing at paragraph 45 to 48, the issue that arose was whether the New South Wales legislation for compensation for persons suffering from acts of violence applied in a case where none of the acts of violence occurred in New South Wales and the only connection with New South Wales was that the offender was briefly a resident. What you will see from paragraph 48 was that in the decision under review, the Administrative Tribunal found that there were three elements which all had to be given a territorial operation in order to comply with the presumption. The offence and the injury had to occur in New South Wales and, as well as that, it had to be contrary to the law of New South Wales.

The Court of Appeal held that that was an incorrect, overly mechanistic and overly literalistic application of the presumption. One does not simply look at every turn that is universal on the statute and try and read in an Australian connection. Instead, what one does is look to the subject matter and purpose of the Act to what is the hinge – what is the central focus or conception – which provides a territorial link. You will see that analysis, in particular, after his Honour discusses the history of the statutory form of presumption in New South Wales in paragraph 92. The summary of his reasoning is between 110 and 120. After recognising at 111, that there are two related but distinct common law rules – one at the general level and one at the more specific level – at 112, the rule may not provide sufficient guidance as to how the reading‑down occurs. In 113, leaving offences aside:

the question is to identify by reference to the statute’s context and subject matter the manner by which the generality . . . is confined to New South Wales, which is normally by a single integer. It is for this reason that I accept the plaintiffs’ submission that there was error . . . in requiring each element of the statute . . . to be in New South Wales.

At 116, he makes the same point – including referencing what Justice Dixon said in Barcelo, at page 422, that:

once there are two expressions in a statute to which –

the presumption:

is capable of applying, then “as soon as this restriction is applied to one of these expressions, the prima facie need for a territorial limitation is met and . . . there is less reason for the other”.

The rest of that is important, down to paragraph 120. After the further discussion, at 146 Justice Dixon in Wanganui is picked up. His Honour, there, made the same point at the end of the passage:

But, because there are such a number and such a variety of ways in which a transaction may be connected with the State sufficiently to found the constitutional jurisdiction –

That is treating it as a matter of constitutional power:

the territorial limitation of legislative power gives no guidance when it is necessary to construe perfectly general words –

What happens then, from 149 onwards, is his Honour identifies four authorities. The first two are at New South Wales Court of Appeal level and the next two are of this Court, where the approach was taken that one does not apply the presumption mechanically. One tries to identify the hinge or the central conception, or the focus, upon which the Act operates to discern the territorial limitation.

So, in the first case, O’Connor v Healey – a worker’s compensation case – it was sufficient if the injury was received in New South Wales, but the beginning and end of the journey did not need to occur here. In Glenorcy, it was sufficient, for the fidelity scheme, for the solicitor to be a New South Wales solicitor even if the wrong occurred in Queensland. In Old UGC, it was sufficient for the workplace action that there was performance of the work in a New South Wales industry and no question of extra‑territorial reach arose even though there were matters outside New South Wales. Finally, Insight Vacations – to which I will come – is, perhaps, the clearest example of the point. I will come back to that in one moment. So, his Honour’s summary at 157, we would submit, is a useful summary of a great many cases that have grappled with the presumption.

EDELMAN J: Each of these examples of the central focus of the statute does seem to be a description – at some level of generality – of the subject matter.

MR GLEESON: Yes.

EDELMAN J: Rather than the persons or the geography.

MR GLEESON: Yes. What is this Act seeking to do? It is seeking to regulate performance of work in an industry, Insight Vacations, what is the Act seeking to do? It is seeking to deal with the rules governing a supply of recreational services in New South Wales.

GORDON J: I put it to Ms Harris this morning that here, if one looks at the Federal Court Act, and looks at Part IV and the role it plays within that Act ‑ ‑ ‑

MR GLEESON: Yes.

GORDON J: One asks what its purpose is, it is to provide the procedural rules for the determination of the underlying causes of action given by the other 150 statutes.

MR GLEESON: Yes.

GORDON J: So the hinge, therefore, is: are those – in effect – matters proscribed by those statutes rather than trying to find some other territorial limit?

MR GLEESON: Yes. That is the hinge. That arises on the proper construction of the Federal Court Act as a whole, plus those other statues, plus, ultimately the Constitution. Then what one does not do, the very thing one does not do, says Justice Leeming, is go and find a general word – persons – and say, I have got to make them persons in and of New South Wales, because in doing so, you in fact distort the entire statute.

You do it for no purpose, because your Honour the Chief Justice asked today of BHP, what jurisdiction of some other countries is said to be interfered with under any principle of international law, whether public or private, or even comity of nations more loosely by saying that persons who have claims which can properly be heard in an Australian court in respect to an Australian wrong against an Australian wrongdoer, and there is no answer; there can be no answer. So, we commend that decision as a useful and correct approach to the case ‑ ‑ ‑

GORDON J: You said you were going to come back to Insight Vacations, but that is what happened in Insight, was it not?

MR GLEESON: It is exactly what happened in Insight. Your Honour should have Insight separately[2011] HCA 16; , 243 CLR 149, your Honours have it in a loose copy. The case was in particular about section 5N of the Civil Liability Act 2002 (NSW), concerning terms of a contract restricting liability for negligence in the context of recreational services, and as seen from the headnote, the accident occurred in Europe, the alleged negligence occurred in Europe, the injury occurred in Europe, but the argument was the contract was governed by New South Wales law.

So, the question was whether section 5N would be construed as confined to New South Wales, either through the place of supply of the recreational services, or through the governing law. It is a case where the presumption came into play – this is from paragraphs 27 and following ‑ the reason it came into play was that Section 5N, which spoke generally, did not tell you what connection – if any – to New South Wales it required. So, in paragraph 28 the Court says while section 12 of the Interpretation Act (NSW) is the presumption, it:

does not identify which of the several possible elements of s 5N is to be read as a “matter or thing in and of New South Wales”.

Is it the contract? Is it contracts made in New South Wales? Contracts governed by New South Wales law? Is there some other geographical limitation? So the presumption throws up the question but the answer, says paragraph 29, is a:

reconciliation . . . upon a consideration of the context and the subject matter of the Act –

In paragraph 31, Kay’s Leasing, Justice Kitto’s judgment, is understood as a case where if you applied the presumption to require the contract to be governed by local law, that would permit easy evasion of the statute and its remedial purpose, because the parties can choose a different proper law and so a different limitation was necessary. So, the conclusions in the case are at 32 to 34.

At 33 the Court did not reach a final view on the central focus of Part 1A as a whole but recognised that the claim might be the link, and that could be either a claim in the courts or a claim governed by New South Wales law. But, relevantly, at 34 the central focus of Division 5, which contained 5N, was recreational activities in the State.

Now, the BHP argument just does not really grapple with how one would in any way construe this statute consistent with ordinary principles of purpose, context and the like to require the connection ‑ ‑ ‑

GORDON J: I thought 36 was where they resolved this “hinged about” idea by understanding of a broader context in which the provision sat.

MR GLEESON: Yes, we rely upon 36, and it is an illustration of usually a single integer proposition because, having found the link to a supply in New South Wales, the Court says:

And once that reading is adopted, it follows that it is neither necessary nor appropriate to construe the sub‑section as importing any other geographical limitation (or extension) of its operation.

At the end of the paragraph that gives best effect to the purpose and text of the provision read in statutory context. So that is the type of exercise that is required, and translating that here we would say, once it is understood that the claims must meet the tripartite test of section 33C and the Court must have subject matter jurisdiction over the claims and personal jurisdiction over the defendant, it is neither necessary nor appropriate to construe the term “person” as importing any other geographical limitation.

Your Honours, the third case is Ex parte CSL 214 CLR 397 at volume 4, tab 26. We disagreed on one critical aspect of the reading of this case from the appellants. Paragraph 8 contains section 5(2) of the Workplace Relations Act and:

This Act has effect as if:

. . .

(b) each reference in this Act to an industrial dispute included a reference to an industrial issue.

Over the page at paragraph 9 the definition of “industrial issue” is expressly given to concern:

the relationship between employers and maritime employees, so far as those matters related to trade or commerce –

which is given the constitutional meaning. So, pausing there, the term had within it three conceptions: one is employers – that is a form of persons; employees – that is a form of persons; and then it had a subject matter – trade and commerce in the constitutional sense. Passing over the primary argument, which was about legislative power, the argument on construction at paragraph 41 was that one should read section 5 as having an unexpressed limitation as not applying to:

industrial matters in which (a) the employer has no “presence” in Australia and (b) the employees are foreign non‑residents –

So what was attempted to be done was to say that the presumption requires a category of persons, in each case employers and employees, to be read down to persons in and of Australia, in addition to the fact that the statute had already expressly identified as subject matter connected to Australia, which was constitutional trade and commerce.

In paragraph 43, the Court says that the typical sort of case which would attract the presumption is a case like the Jones Act, 46 USC 688, where the provision is in perfectly general terms:

“[a]ny seaman who shall suffer personal injury in the course of his employment”.

Shall be entitled to X. That, we accept, is the type of provision which attracts the presumption because, unless some reading‑down is done, a case which has not the slightest connection with a territory would be reached by the provision. The Court says – and this must be a very summary way of dismissing an argument the Court very little of:

But the terms of s 5(3) of the WRA are not at large. Rather, they identify, in par (b) thereof, trade and commerce. . . Section 21(1)(b) has no relevant operation upon s 5(3) –

So, what the Court has said, as we would submit, is once we have found the hinge, or the focus, or the central conception – trade and commerce in the constitutional sense – there is, simply, no work further for the presumption to do. General words, such as “employers” and “employees” – they are left to do their general work.

So, the only difference – if there is one – between CSL and our case is that in CSL you find the central hinge in express terms – trade and commerce. In our case, you find the hinge once you situate Part IVA in the context of the statutes creating the obligations and remedies and conferring the jurisdiction on the Federal Court. Once that is done, there is, as we would submit, no relevant operation that the statutory presumption can have. Our difference from the appellants is that the appellants read this very brief statement as an example where the statutory presumption did have work to do in respect to the employers and employees, but it was rebutted. We would read it at the anterior stage. It had no work to do.

What then happens is the judgment goes on to the second argument, which is the common law presumption. The prosecutor, perhaps ambitiously, tried to identify two principles of customary international law which first it had to establish – which is always difficult – and then, secondly, it had to establish were infringed by the provision if it was given its full effect.

At the first stage, the Court had some doubt as to whether the principles were established, but critically, at the second stage, paragraph 48, there was no interference with the alleged principle of international law, and at 52 to 53, no interference with the second alleged principle, once it was understood on the proper construction of the statute that the AIRC could take into account internal economy considerations in the exercise of its discretion.

Now, that second stage of the exercise CSL usefully illustrates will require you to prove the principle of international law that you say would be infringed by a reading of the statute on its ordinary terms – and even then, you will get to the question of whether, on its full construction, the Parliament legislated notwithstanding that infringement. Those steps have not been taken by BHP in this case.

If your Honours could, just on this topic, return to the Mulheron article for a moment, which is in volume 6. I sought to take the Court to page 448 to the UK provision to contrast how different it is with what we find in Australia. What the article goes on to do between pages 452 and 454 is indicate that, around the common law world, there are five different legislative approaches that have been taken to the problem.

The first is the approach seen in the United Kingdom in the statute in question, and elsewhere in part of Canada. The second, on page 453 is described as “the no-provision model” where the statute is entirely silent about non-resident class members. That is said to be the US federal regime, Ontario, Nova Scotia, Australian federal regime and the three State opt‑out regimes. I will just observe there Queensland and New South Wales certainly meet that description. Victoria has a slight variation which means it appears in category 4 below as well. Then there are categories 3, 4 and 5.

What follows from that variation? Firstly, that each Parliament simply chooses its own answer to this problem, and each statute needs to be construed in its own lights. What emerges secondly, in terms of the Ex parte CSL analysis is that there can be no suggestion that there is any principle of customary international law which is offended by Part IVA operating in accordance with its general terms, because it is a position taken in a number of countries, and there is no unanimity around the common law world in how this problem is dealt with.

Just before your Honours leave that article – hopefully for the last time – there is a useful discussion of Mobil and of the traditional representative action in equity between pages 1792 to 1794. In the eyes of the author on 1792, the “anchor” recognised in Mobil as justifying the domestic court exercising personal jurisdiction over non‑residents is the close alignment of the grievances with those of domestic class members, such that adequate representation is assured.

That is one way of understanding the approach which we submit is taken, given Part IVA’s general wording. What is important on 467 in the second paragraph, is the author recognises that the current UK position “stands in stark contrast” to the traditional English representative position, which is that the suit can include non‑residents. Without reading it, the author explains how that is so through the traditional equity cases in the United Kingdom.

Over the page, at footnote 154, references a decision in 1991, Irish Shipping Ltd v Commercial Union – 2 Queen’s Bench 206 – where a defendant representative action was allowed where there was a same interest, but there were persons in the class who were not resident in the United Kingdom.

So, in short, what happened is that sharp U-turn was taken in the United Kingdom contrary to the traditional approach in Equity, which produced the very specific hybrid model that appears on page 448; whereas, in Australia, our model follows that which had occurred in Equity and does not seek to exclude non‑residents. For completeness, I will just note that on page 1797, the author says that one can discern from Mobil, a second jurisdictional anchor which is the Court having authority, by reason of the defendant’s amenability to the Court’s jurisdiction.

Your Honours, you were referred to Meyer Heine this morning – which is at volume 3, tab 21. Again, we differ in our reading of that case. As is seen from the commencement of the headnote, the essential holding was that section 4 of the Australian Industries Preservation Act did not penalise acts done outside Australia by foreigners. That was the issue under the demurrer: did the language extend to penalise acts done outside Australia by foreigners? It was in that context that all of the observations of the Court were expressed. That context does not attract any version of the presumption which could possibly be relevant to our case.

The other critical aspect of the reasoning is that most of the judges in the majority, in the end, did not decide the case on the presumption. They decided it on the narrower point that they could find express indications in the statute that it was limited to contracts made in Australia. That is apparent from Justice Kitto, at the top of page 847 of the book; Justice Taylor, at the foot of page 854, and ‑ ‑ ‑

STEWARD J: Mr Gleeson, could you give the CLR page numbers?

MR GLEESON: Yes, I am sorry. Justice Kitto, CLR, page 24, at the top, and Justice Taylor, CLR, page 31, at the foot.

STEWARD J: Thank you.

MR GLEESON: And, Justice Windeyer, at page 43, at the end of his judgment.

So what was not resolved in Meyer Heine, and perhaps has still not been resolved, is a question which does not arise in this case, which is: if the Parliament uses the overseas trade and commerce power to penalise acts done by foreigners overseas but which impact upon trade and commerce in Australia, under an effects test, is that form of long arm antitrust jurisdiction contrary to international law?

That is a large question. It was a large question in 1965. It is perhaps an even larger question today. What Meyer Heine said was whatever view be taken on that large question, we find specific indications in the Act that it intends to limit itself to things done in Australia.

Your Honours, I think the final case that I needed to respond to was Barcelo, which is in the same volume 3, tab 15. It is a case which illustrated a wide range of approaches to how one finds the territorial limitation to Australia and, in the end, tells us only that all the tools of statutory construction are going to be necessary to find the central conception or the central focus or the hinge, and that no mechanistic view of the presumption can be taken, and nor can any one case be answered by simply picking out text from another.

Justice Rich dealt with the question on page 406, which was whether the general expression “every mortgage” should be read as in some way limited and, if so, how limited. His Honour immediately went to the object or purpose of the Act – this is page 406 of the CLR, 425 of the book at point 3 – which:

was to contribute to the general reduction of interest rates by giving a certain measure of relief to debtors who were liable to pay interest . . . The Act itself does not give any indication that the Legislature intended to differentiate between the rights of local and foreign creditors. It concentrates on the relief of the local debtor –

Then limitations were urged based on general language, and his Honour said none of them were necessary.

So, in his Honour’s approach, once one understood that the central conception of the Act was relieving debtors in Victoria from interest, then there was no reason to read down the creditors as limited to Victorian creditors, because that would not achieve the purpose of the Act. So it is a good example where, having found the connection, one does not automatically or perhaps at all then read down further terms, because if you do you will destroy the objective of the Act. On 407, his Honour observes that:

Whether a Court in England would give effect to the Act is a question of English law.

So this is the submission I put on section 33ZB. The English court would have to consider that. It may not be hard and fast rules. But, ultimately, the construction of the Australian Act is not going to be governed by any advance assessment of what a court might do overseas on recognition and enforcement. In the approach of Justice Starke, which is a little different, at 410 of the CLR we see his version of the presumption – if possible, construe it:

not to violate the comity of nations, or, possibly, the generally accepted principles of . . . private international law –

He observes the words “every mortgage” in general and then, at the foot of page 411, says that there were four different limitations suggested to Victoria. At 412, point 3, importantly he comes back to the idea of identifying the plan of the Act – the policy, the purpose – which was a common sacrifice in order to re‑establish stability in Victoria, and that suggests:

relief from obligations for the benefit of persons or corporations in Victoria.

His Honour on page 415 in the middle rejected any further limitation, and found the Act was no narrower than the full constitutional authority of Victoria. So that is the broadest view. But, conceptually, it is the exercise of construction in establishing the central conception of the Act which drives the analysis.

Justice Dixon at page 422, point 3, rather importantly observes that the Court below had:

implied the double limitation, by which the place of payment and the situation of . . . property –

was required to be within Victoria. His Honour found that to be an error, in the second half of that page. This is the classic passage that once one restriction is applied, the prima facie need for another is lesser.

On 423, in the middle, his Honour is also looking to the object or general plan, but that does not get him the whole way there. At the foot of the page, he comes back to what he says is:

the settled, if artificial, rule of construction –

that the statute should be confined to:

a subject matter under the effective control of the Legislature.

At that point, over the page, he cites the classic authorities. At 425, point 4, that leads him to the view that you read the statute down to debts or obligations governed by Victorian law. There is no doubt that his Honour’s approach in this and Wanganui was to regard a reading down on a governing law basis as often an attractive solution – not always, but often an attractive solution to the problem. That solution, reading down on a governing law basis, was not adopted by any of the judges in the case.

KIEFEL CJ: Mr Gleeson, does particularly Justice Dixon’s approach in Barcelo point out the importance of asking the correct question about what the statute does? Does one look to the construction of the statute to see whether or not it has a sort of a negative intention in relation to extraterritorial operation – which is one way to approach Part IVA and say there is clearly no limit – or does one approach it to say, does it exhibit any operation which might affect the jurisdiction of a foreign court in relation to subject matter?

MR GLEESON: Your Honour, each could be an available approach. In the present case, each leads in the same direction ‑ ‑ ‑

KIEFEL CJ: Yes.

MR GLEESON: ‑ ‑ ‑ because, in the first approach, everything you observe in the statute bespeaks generality, but generality for a purpose; not because the parliament has just used words that are so broad that they could have unintended consequences. Generality is part of the plan to provide this improved set of procedures. That leads you to a prima facie conclusion. Then, if you come from the opposite end, you would be saying, is there any identification of some principle of international law, public or private, that is offended by ‑ ‑ ‑

KIEFEL CJ: Or anything in its operation which actually has any effect at all, because if – it is pointed up here because we are dealing with a matter of manner of exercise of jurisdiction or procedure.

MR GLEESON: Yes.

KIEFEL CJ: It is difficult – as you say – before most cases deal with whether or not there is an effect on a substantive right in another jurisdiction.

MR GLEESON: Yes. One cannot find even that in this case, so you really do not get to first base on saying, the sovereignty of some other country is offended by this.

KIEFEL CJ: No.

MR GLEESON: Because the end result will be a decision by settlement, or by judgment, backed by 33ZB, saying, that is the final answer under Australian law to this problem. There may never be any attempt by anyone to re‑open that answer in a different jurisdiction. But, if there is, what the Australian court has said can only ever have any work to do to the extent that the foreign jurisdiction – under its own law – of conflict of laws or recognition of judgments, gives Australian law that work to do. In fact, far from it being any interference with the foreign jurisdiction, it is simply a factum created by Australian law which a foreign jurisdiction will then do such with as it has.

There is no doubt that, where the subject of the Act is an obligation – which was Barcelo and Wanganui – Justice Dixon’s preferred approach was to see if governing law provided you with a territorial limitation. There is no doubt that behind that might have been an idea if other civilised nations applied similar principles of conflict of laws and treated governing law as the criterion, then that might lead to easier recognition and enforcement of judgments. But it does not go any further than that and his Honour is quite clear that you do not automatically lurch a governing law. You are looking to what this Act is seeking to do.

Just to complete the difference – and it is a slight conceptual difference with Justice McTiernan – is that while he cites the same authorities from pages 444 and onwards, his decision from the bottom of 447 is perhaps closer to the first of the roots which your Honour identified, which is to say: is there any limitation which would need to be adopted to exclude the debentures in the present case from the operation of the Act?

So, rather than, as it were, identifying positively this is the entire meets and bounds of the operation of the Act in every circumstance in which it may or may not apply, his Honour operates negatively and says, is there any reason for presumption that gives me why I must exclude its operation from the present case? He comes to the conclusion at the middle of 448, similar to some of the others, that the inference that the legislature intended to confine the Act to obligations to pay interest which were to be performed in Victoria is not required by the presumption.

GORDON J: Where were reading that, Mr ‑ ‑ ‑

MR GLEESON: Page 448 at about point 6.

GORDON J: Thanks.

MR GLEESON: Your Honours can contrast Barcelo with Wanganui, which is in volume 4 at tab 29. It was another case of legislation bearing contracts, but it has this interesting observation in the headnote on page 582 of the CLR. The first holding was:

that the proper law of the obligation to pay interest was . . . New Zealand –

That is fine. The second holding was:

that the Interest Reduction Act 1931 (N.S.W.) did not merely regulate procedure in the Courts of New South Wales, but was aimed at annulling, pro tanto, obligations to pay interest.

At that point, the Court split upon whether the law applied in the particular case where there were overwhelming New Zealand connections. But it seems from pausing on that second holding that the Court assumed that if the law had properly been construed as merely regulating the procedure in the courts no issue would ever arise.

Again, as to how the presumption was to apply, there were a variety of options available, and in the majority judgments, in Justice Dixon’s judgment at page 600, he observed at the middle that:

there are such a number and such a variety of ways in which a transaction may be connected with [New South Wales] sufficiently to found the constitutional jurisdiction, the territorial limitation of legislative power gives no guidance –

Then, interestingly, he goes on to say:

Nor does sec. 17 of the Interpretation Act 1897 (N.S.W.) supply any guide as to the exact nature of the limitation to be placed upon the general words –

Then in the next paragraph:

If the “obligation to pay interest” is a “matter or thing” . . . the question remains: When is it a matter or thing in and of New South Wales?

At that point, his Honour falls back on the next page to the general words being confined to that which in accordance with:

rules of international law administered or recognized in our Courts, it is within the province of our law to affect or control. The rule is one of construction only, and it may have little or no place where some other restriction is supplied by context or subject matter.

Then his Honour again applies a governing law approach.

However, in the other majority judgments, the governing law approach is not applied. In Justice Evatt’s approach – at page 609, point 5 – it was more a factual approach looking at a whole series of factors which connected the case more with New Zealand than Australia. Justice McTiernan was to the same effect on page 613. There were eight points connecting it more with New Zealand than Australia. What we take from that in the end, is the courts have never applied a mechanistic or literalistic application of the presumption. They have never assumed every term must be limited to New South Wales or Australia; instead, they have looked at the central purpose or conception of the Act. Your Honours, in terms of our outline, that takes me down to paragraph 11, all of which is to say the presumption has been complied with, and/or has no operation.

If one was in the territory of seeking a clear contrary intent, we have dealt with that in our written submissions. There are four main points that the generality of the use of the term “persons” is deliberate and is part of the scheme. Secondly, to read in residents would create, in short, chaos. Thirdly, residents, if read in, would contradict the fundamental Parliamentary choice respecting the autonomy of all group members. Fourthly, it would defeat the core purposes of the Part and render it deficient over the old representative action in equity.

The foreign group members would be left to bring their claims under an Australian statute, in an Australian court, by other procedures, multiplying actions, costs, and demands on court time. Satellite litigation over the composition of the group would be encouraged, against no clear standard in the text, and the damage to the Court’s resources in facing a multiplicity of actions would be transparent.

Your Honours, our final submission I have made – which is that one cannot find any supporting international authority or materials for the BHP argument. In no jurisdiction which uses the type of general approach
Australia uses, has the presumption ever been argued or applied. NAB v Morrison, I have explained is a different case. The final case I mentioned earlier, Phillips Petroleum Co v Shutts – which is in volume 5, at tab 39 – is an excellent discussion by the US Supreme Court of how the relationship between the group and the court is fundamentally different to the relationship between the defendant and the court. Unless your Honours have questions, they are our submissions.

KIEFEL CJ: Thank you, Mr Gleeson. Your reply, Ms Harris.

MS HARRIS: Thank you, your Honour. Your Honours, in construing this legislation, we must look at it through the eyes of 1991 lawyers. The meaning of the legislation must be the same now as it was when it was passed. We cannot rely on the way in which it has been deployed – including the mechanisms that have been developed in a bespoke way by the Federal Court – to determine the meaning of the legislation. That is a matter of construction. In that task of construction, the respondents have given this Court no assistance or guidance in how to reconcile the statements that have fallen from members of this Court in consistent terms for over 100 years with respect to a presumption of construction that will apply where the general words of a statute are capable of giving an effect extra‑territorially.

So, in the quiet of your Honours’ chambers, your Honours will have to determine how to reconcile our learned friends’ arguments with statements like those of Justice Windeyer in Foster – at 103 CLR 306 – that a statute, in general terms, is always construed as, prima facie, affecting things and persons within the territory of the country. Your Honours will have to grapple with statements to the same effect in Jumbunna Coal, by Justice O’Connor, in Morgan v White, by Justice Isaacs and Justice Barton. Your Honours will have to grapple with Meyer Heine, where that statement was picked up in each of the judgments – statements of the principle were picked up in each of the judgments – not doubted – and there is no application here for leave to depart from anything that was determined in those cases.

Your Honours will have to grapple with what with what Justices Dixon and McTiernan discussed in Barcelo – the former at page 424 and following, and the latter at 465 – where they each stated the presumption in materially the same terms. A legislature is presumed to be dealing only with persons within its jurisdiction and your Honours will have to grapple with the discussion in particular by those two Justices in Barcelo where the focus is on the application of the legislation to persons. And Justice Dixon’s discussion at 424 picks up and endorses the application of the presumption of two persons.

GAGELER J: Ms Harris, are you going to grapple with Justice Leeming’s analysis in DRJ?

MS HARRIS: That brings me, your Honour, to the next point. We actually see – I do not know how to put the lectern down, your Honour, so I hope your Honour can see me. DRJ actually helps us because Justice Leeming recognises that presumption. The thing that is seized on by our learned friends actually helps us too, because Justice Leeming makes the point, and it must be right, that you do not read every single word in a statute as being intra-territorial where that is not necessary to give the statute intra-territorial operation. So, it was sufficient in DRJ to read the statute as applying to acts of violence committed within New South Wales. It was acts of violence which was, in the words of Insight Vacations, the hinge or the central conception of the legislation, so it was right to read that term intra-territorially. We embrace that, because the central conception of this legislation is group members.

To pick up the point that fell from your Honour Justice Gordon, the central point, the central focus of Part IVA is not the courses of action which are established under the various 150 or so statutes, with respect to which the Federal Court has subject matter jurisdiction. That is not the central conception or focus of Part IVA. The central conception or focus of Part IVA is bringing forward adjudication, claims of persons not before the Court.

How is that to occur? What is the consequence? The consequence is set out in section 33ZB. So, to pick up something that fell from your Honour the Chief Justice, this is a statute which does affect rights of persons outside the territory. It does purport, on its terms, to make a judgment of the Federal Court binding. If it were to be binding, anywhere in the world, then that would preclude the person – the non‑resident – from bringing an action in a court in their home territory. There is no other way you could erect a statutory estoppel other than by preventing an action in that court of the territory of the non‑resident. But, concededly, it does not do so.

The respondent’s approach to this argument is the same as it was at first instance and below in the Full Court of the Federal Court, and that is to invert the presumption; to say Part IVA can be read sensibly as applying to non‑residents. That is not the point. Part IVA is like any other piece of Commonwealth legislation. This Court will construe it, consistently, with the canons of construction that have been accepted in this Court as applying to statutory words of this kind. Our learned friends say, for example, section 33C, obviously, applies to everyone in the world. Right there, we have an inversion of the presumption because the presumption presumes that when section 33C talks about persons, it is talking about persons within the territory.

So, there is no violence to section 33C at all in BHP’s construction because the representative party is in the territory. They must come into the territory to issue proceedings in the Federal Court of Australia. So, even if they come from outside, they must come into the territory to do so. The balance of the persons – the group members – to them, the presumption applies. When we read – and we are grateful to our learned friends for focusing on other sections of Part IVA – your Honours will not have found a single word in any of those provisions that is suggestive or redolent of extra‑territorial operation – not a single word.

The submission that somehow BHP’s approach will destroy something is a submission made through the lens of 25 years of experience where this question has not been raised, and it has simply been assumed that if you want to make a foreign resident part of your group, you could do so. That has no bearing whatsoever on the proper construction of this legislation. That the submission that BHP’s submission creates uncertainty implies that we have two equally competing constructions here; that is not the way that presumptions work.

The presumption applies unless Parliament gives an indication clearly by express terms, or by necessary implication, that it intends to reach into another jurisdiction and affect the rights of persons outside Australia. We say again that it is important in this regard to distinguish between the presumption and how it might be given effect in this context. The presumption is that Parliament intends to affect the rights of persons inside the territory, and not to affect the rights of persons outside the territory. In its relevant operation, that is the presumption.

STEWARD J: Ms Harris, do I take it that your argument is that the presumption is not just another constructional tool but something which is automatically engaged to this generalised language unless it is turned off by contrary statutory intention?

MS HARRIS: That is the way presumptions work, your Honour, and that is the way the presumption has been given effect by decision after decision after decision of this Court, in respect of none of which is leave sought to depart. In many contexts, the Court will not need to have regard to the presumption because there will not be a question about extraterritorial operation, but there is one here. There is a question here, and in resolving that we are, for want of a better word, stuck with a body of authority that tells us how that tension is to be resolved. It is presumed that the legislation will operate on persons within the territory.

The respondents, in opening their submissions this morning, tried to sidestep the presumption altogether and the argument was, first, anyone can sue for a breach of section 12DA of the ASIC Act – anyone in the world can sue. The second step is the Federal Court has jurisdiction to determine claims for breach of section 12DA, pursuant to section 1337B of the Corporations Act. Then the slide, all Part IVA does is provide an additional set of processes and procedures by which the jurisdiction may be exercised, and so the presumption has no room to operate.

That breaks down in a number of steps, that argument, and it also involves a non sequitur. Yes, the Federal Court has jurisdiction and power under section 1337B to adjudicate claims for breach of section 12DA which are submitted to it and the provision does not enable it to take it upon itself to determine claims of that kind belonging to people who choose not to invoke its jurisdiction. Those provisions do not facilitate the adjudication of non‑party claims. It is Part IVA that bridges that gap, and it does so with respect to persons who have not invoked its jurisdiction. Those people are group members.

I am conscious of what your Honour Justice Gordon has said about the provisions being procedural. They are in a sense, but they do have a substantive effect on rights. Once someone’s claim is submitted by a representative party to the court for adjudication, then their rights will be determined and thereby affected. They will lose a course of action and they will lose on the terms of section 33ZB. They will lose the ability to prosecute that course of action in any court – an Australian court or an overseas court. They lose something.

The way the respondents pitch it is, it is all upside. But it is not all upside for the group members, because they actually have their rights affected, and that is, as I said, part of the answer to what fell from your Honour the Chief Justice. So once we conceive with Part IVA in that way, which we must, then we circle back to this central question not answered by the argument proffered by the respondents; namely, whose claims may be so adjudicated? Which non‑parties? Which persons may be non‑parties whose claims are adjudicated without them having brought them forward and invoked the jurisdiction of the court themselves?

Circling back to this Insight Vacations point that your Honour Justice Gordon raised, and in answer also to your Honour Justice Gageler, that is the point of DRJ, that is the hinge here. The hinge here is group members. Part IVA is all about the adjudication of group member claims. Your Honour Justice Gordon is right; there are other provisions that deal with other aspects of what will be involved in these proceedings. Other statutes dealing with the norms of behaviour which might have been contravened. Other parts of the Federal Court Act dealing with the
initiation of proceedings by the mechanistic processes by which pleadings must be filed on time by the representative party. Part IVA does not concern itself with all of that. It concerns itself with group members.

When your Honours are seeking to reconcile our learned friends’ submissions, your Honours will also have difficulty in reconciling the submission – again made in very plain terms today – that the presumption only arises when you cannot find an expression of connection to Australia in the statute. With respect, that must be wrong. Meyer Heine tells you it must be wrong. In that case, the statute was clearly connected with Australia. It only concerned Australian subject matter; the protection of Australian industry. But that was not the end of the argument, and contrary to what my learned friend says – and obviously your Honours will have to read the decision for yourselves – the presumption had work to do.

EDELMAN J: It may depend upon – again, back to the Insight Vacations of Justice Leeming’s point, but what the gist or the central focus or the central point of the legislation is. You say that the only relevant legislation here is the Federal Court Act and the relevant provisions are where the subject matter is persons, and one does not need to talk about in terms of personal jurisdiction or the personal dimension of jurisdiction if the subject matter itself is a subject matter over persons.

MS HARRIS: Well, I guess your Honour can conceive of it that way, but ultimately it is all subject matter in the sense that we are dealing with either persons as subject matter, acts as subject matter – as in Insight Vacations, the question was where the acts were done and it did not matter that the proper law of the contract was New South Wales. So that is the work done, I guess, by this central conception concept. But ultimately the job that the presumption does is, subject to any contrary expression of intent by a Parliament, it ensures that the legislation will operate within the territory and in the ordinary case it will suffice to achieve that end to identify the central conception and to read that central conception as being a person, a matter, a thing, in and of this territory. That is the role of the presumption in this case in the context of Part IVA.

To circle back to where I started my reply, it would not surprise any lawyer, I would venture, in 1991 for someone in the position of BHP to say this legislation applies to persons within Australia. I do not think it would surprise anyone. I doubt it would surprise any of the members of the High Court who have articulated this presumption so consistently. It is surprising only because we stand here as class action lawyers 25 to 30 years down the track and are hearing the argument for the first time. That has no bearing on the correct construction of the legislation. We must look at it through 1991 eyes. If your Honours please.

KIEFEL CJ: Yes, thank you. The Court reserves its decision in this matter and adjourns to 10.00 am tomorrow.

AT 4.16 PM THE MATTER WAS ADJOURNED