BHP Group Limited v Impiombato [2021] FCAFC 93 (03 June 2021) (Middleton, McKerracher and Lee JJ)


Catchwords:


REPRESENTATIVE PROCEEDINGS – shareholder class action – claims brought on behalf of non-resident shareholders – dual listed company structure – whether provisions of Pt IVA of the Federal Court of Australia Act 1976 (Cth) capable of application to group members not resident in Australia – procedure under Pt IVA – consideration of the meaning of “claim” under s 33C – question of jurisdiction better defined as whether Pt IVA permits an applicant to define group membership as including claims of non-residents – statutory presumption against extraterritorial operation of legislation – s 33C directed to when a particular form of proceeding can be commenced in an Australian court – presumption has no work to do – consideration of class action regimes in different common law jurisdictions and the issue of non-resident group members – consideration of s 33KA of the Supreme Court Act 1986 (Vic) – whether the Court should exercise its discretion to exclude non-resident group members from the proceeding – order could be fashioned if and when appropriate – strike out application – whether the claims brought on behalf of the shareholders in the United Kingdom company were viable

EQUITY – Pt IVA supplements powers Court always had and has as a court of equity to hear and determine in a single proceeding the multiple claims against a respondent – consideration of the powers the Court of Chancery had in relation to the conduct of a representative proceeding – concept of jurisdiction not based on mere presence and service, but upon a sufficient connexion being shown between the dispute and forum – purpose of Pt IVA not to narrow regimes that existed in equity’s exclusive or auxiliary jurisdiction – curious result if one could be a group member in a Chancery rule representative proceeding but not under Pt IVA procedures

PRIVATE INTERNATIONAL LAW – authority of the Court to decide personal actions of non-residents – consideration of the jurisdictional “anchor” – Mobil Oil Australia Pty Ltd v Victoria [2002] HCA 27; (2002) 211 CLR 1 – territorial nexus the capacity to exercise power over a respondent

HIGH COURT AND FEDERAL COURT – federal jurisdiction – whether Pt IVA confers jurisdiction on the Court or establishes powers and procedures by which the Court can exercise jurisdiction