J Wisbey & Associates Pty Ltd v UBS AG & Ors

Judgment

Preliminary

J Wisbey & Associates Pty Ltd v UBS AG [2021] FCA 36 (Beach J)

View judgment

Judgement delivered 29 January 2020

Catchwords: foreign currency instruments – alleged cartel conduct – corporations – practice and procedure – application to replead – group definition – numerous permutations and combinations of claims – pleading of alleged cartel understandings – availability of inferences to be drawn – application to replead refused

Orders:

1.    The applicant’s application for leave to file and serve an amended originating application and an amended statement of claim in the form currently proposed to the Court be refused.

2.    Costs reserved.

Some notable comments

On agents and ‘carrying on business in Australia’

235 The respondents say that no facts are pleaded that are capable of establishing that the relevant agents and related bodies corporate were incorporated or carried on business in Australia, even though the conduct on which the applicant relies appears to have occurred outside of Australia. Now whilst agency attributes legal responsibility for the agent’s act within the scope of his authority to his principal, it “does not in a physical sense transmogrify the act done by the agent into an act done by the principal” (IL v The Queen (2017) 262 CLR 268 at [82] per Bell and Nettle JJ). Nor do the statutory provisions that deem a body corporate to be party to an arrangement made by its related bodies corporate. Accordingly, the respondents say that facts capable of establishing that each relevant agent and related body corporate was incorporated or carried on business in Australia must be pleaded (see s 5 of the TPA and the CCA).

236    But I agree with the applicant that it is far from clear that an agent and/or related body corporate must meet the “carrying on business within Australia” requirement of s 5 of the TPA or the CCA (as applicable) for the purposes of establishing liability against the principal who otherwise meets that requirement. Notably, s 44ZZRC of the TPA and the CCA, which deem a body corporate to be party to a contract, arrangement or understanding made by its related bodies corporate are silent on whether those related bodies corporate must themselves meet the jurisdictional requirements of s 5. In my view, any tricky questions regarding the interaction between the requirements of s 5 and principles of agency and/or the terms of s 44ZZRC ought not be resolved on a summary basis. I will leave these alone until trial.