FEDERAL COURT OF AUSTRALIA Melbourne City Investments Pty Ltd v Treasury Wine Estates Limited; In the Matter of Treasury Wine Estates Limited (No 3) [2017] FCA 450 File number: NSD 216 of 2015 Judge: FOSTER J Date of judgment: 1 May 2017 Legislation: Federal Court of Australia Act 1976 (Cth), s 33ZF Cases cited: Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd (2016) 243 FCR 474; [2016] FCA 787 Melbourne City Investments Pty Ltd v Treasury Wine Estates Limited; In the Matter of Treasury Wine Estates Limited (No 2) [2017] FCA 449 Date of hearing: 5 April 2017 and thereafter decided on the papers Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: No Catchwords Number of paragraphs: 20 Counsel for the Plaintiff: Mr NJ O'Bryan SC and Mr M Symons Solicitor for the Plaintiff: Portfolio Law Pty Ltd Counsel for the Defendant: Mr MC Garner Solicitor for the Defendant: Herbert Smith Freehills Counsel for Mr Brian Jones (Plaintiff in NSD 660 of 2014): Mr J Stoljar SC and Mr G Donnellan Solicitor for Mr Brian Jones (Plaintiff in NSD 660 of 2014): Maurice Blackburn Lawyers ORDERS NSD 216 of 2015 IN THE MATTER OF TREASURY WINE ESTATES LIMITED (ACN 004 373 862) BETWEEN: MELBOURNE CITY INVESTMENTS PTY LTD (ACN 161 046 304) Plaintiff AND: TREASURY WINE ESTATES LIMITED (ACN 004 373 862) Defendant JUDGE: FOSTER J DATE OF ORDER: 1 May 2017 THE COURT ORDERS THAT: 1. The Interlocutory Application filed by Brian Jones on 3 April 2017 be dismissed. 2. The costs of and incidental to that Application be costs in the proceeding. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT FOSTER J: 1 By an Interlocutory Application filed on 3 April 2017, Brian Jones, who is the plaintiff in a separate but overlapping class action against Treasury Wine Estates Ltd (TWE) (NSD 660 of 2014) seeks orders pursuant to s 33ZF of the Federal Court of Australia Act 1976 (Cth) (FCA Act) restraining the plaintiff in this proceeding, Melbourne City Investments Pty Ltd (MCI) and its parent company BSL Litigation Partners Ltd (BSL), which is not a party to this proceeding or to proceeding NSD 660 of 2014, from communicating with group members other than in accordance with a communications protocol set out in Mr Jones' Interlocutory Application. 2 That Application is supported by an affidavit affirmed by Mr Slade, who is a principal of Maurice Blackburn Lawyers Pty Ltd. Mr Slade has overall carriage of Mr Jones' proceeding (NSD 660 of 2014). 3 Mr Jones' claims for relief in his Interlocutory Application were ventilated to some extent at the interlocutory hearings which took place in this matter and in proceeding NSD 660 of 2014 on 5 April 2017. During the course of argument on that day, Senior Counsel for MCI proffered an undertaking designed to satisfy Mr Jones' concerns about the terms of any future communications made by MCI to group members. Because matters were being dealt with on the run, as it were, on 5 April 2017, I gave MCI an opportunity to refine the terms of the undertaking which it was prepared to give and directed Written Submissions in respect of Mr Jones' application. I also gave to Mr Jones an opportunity to refine the orders which he intended to seek pursuant to his Interlocutory Application. 4 Mr Jones circulated his final claims for relief pursuant to his Interlocutory Application in the afternoon of 5 April 2017. The final form of orders sought by Mr Jones is as follows: THE COURT: 1. ORDERS, subject to further order, that Melbourne City Investments Pty Ltd and all officers, employees, agents and legal representatives of that company (collectively, MCI Parties) be restrained from communicating with group members (Jones Group Members) in Brian Jones v Treasury Wine Estates Limited (NSD660/2014) (Jones Proceeding) except as provided for in orders 3, 5, 6, 7, 8 and 9 below. 2. ORDERS, subject to further order, that BSL Litigation Partners Limited and all officers, employees, agents and legal representatives of that company (collectively, BSL Parties) be restrained from communicating with Jones Group Members except as provided for in orders 4, 5, 6, 7, 8 and 9 below. 3. ORDERS, subject to further order, that any communications between: a. any of the MCI Parties (on the one hand); and b. any Jones Group Members (on the other); which are initiated by any of the MCI Parties, be in writing. 4. ORDERS, subject to further order, that any communications between: a. any of the BSL Parties (on the one hand); and b. any Jones Group Members (on the other); which are initiated by any of the BSL Parties, be in writing. 5. ORDERS, subject to further order, that the solicitors for the plaintiff send a draft of any proposed written communication to be made to Jones Group Members pursuant to order 3 or 4 above to the solicitors for Mr Jones (Maurice Blackburn) and, insofar as the proposed written communication relates to the opt out notice or class closure regime, the solicitors for Treasury Wine Estates (Herbert Smith Freehills), prior to sending the communication to any Jones Group Members. 6. DIRECTS that if the contents of any draft written communication referred to in 5 above are not agreed between the solicitors for the plaintiff, Maurice Blackburn and (where applicable) Herbert Smith Freehills within 7 days of Maurice Blackburn and (where applicable) Herbert Smith Freehills receiving the draft communication, the plaintiff is to relist the proceeding for Court approval of the form and content of the communication. 7. DIRECTS the date of any such relisting is to be communicated by the solicitor for the plaintiff to Maurice Blackburn and (where applicable) Herbert Smith Freehills on the same day that the matter is relisted. 8. GRANTS LEAVE for Jones and the Defendant to be heard on any hearing for the Court approval of any such communications. 9. ORDERS, subject to further order, that in the event that any of the MCI Parties or the BSL Parties are contacted by a Jones Group Member orally and that group member expresses a desire to obtain information about this proceeding and/or proceeding no NSD660/2014, they are to refrain from communicating with that group member orally about the proceedings in so far as is practicable, other than to: a. inform the group member that this proceeding is currently the subject of a permanent stay order and that the plaintiff has applied to the Court to set aside that order; b. inform the group member of the effect of order 1 and/or 2 above (as applicable); c. request the group member direct any enquiries to the plaintiff's solicitors in writing and provide them with appropriate contact details; d. inform the group member that the plaintiff's solicitor will respond to their enquiry in writing. 5 As expected, MCI refined the form of undertaking which it is prepared to give. That revised form of undertaking was circulated at 9.43 am on 6 April 2017. The undertaking which MCI is prepared to give is in the following terms: MCI undertakes that it will not seek to initiate any communication, and in any event it will not communicate in writing or by any electronic means, with more than one member of the Jones class at a time concerning the opt-out or class closure orders or notices given in the Jones proceeding without giving Jones (through Maurice Blackburn) and Treasury (through Herbert Smith Freehills) 5 business days' notice of its intention to do so and a copy of the proposed communication. 6 BSL is prepared to give an undertaking in the same terms. 7 Mr Jones and TWE pressed the Court for orders in the terms of the revised form of orders which I have extracted at [4] above. TWE suggested a couple of minor changes to Mr Jones' claimed orders. 8 MCI opposed the making of any orders. It argued that the undertakings offered by it and by BSL were more than adequate to meet the legitimate concerns of Mr Jones and TWE. 9 Each party provided to the Court a short Submission in support of the position which he or it had adopted. Consideration 10 Immediately before delivering these Reasons for Judgment, I delivered Reasons for Judgment and made orders which determined MCI's application for an order that I reopen the permanent stay order which I made on 5 July 2016 (Melbourne City Investments Pty Ltd v Treasury Wine Estates Limited; In the Matter of Treasury Wine Estates Limited (No 2) [2017] FCA 449). By those Reasons for Judgment, I declined to reopen that order. 11 When the parties were before the Court on 5 April 2017 and in the following days when they made their Written Submissions, the reopening application had not yet been determined. 12 The effect of the judgment which I delivered earlier today is that this proceeding remains permanently stayed. 13 It may be that MCI will seek leave to appeal from the judgment and orders which I made earlier today. If it takes that course of action, it would probably be more appropriate for the Full Court to deal with an application of the kind with which I am presently dealing, should it be pressed. 14 Given that I have declined to reopen the permanent stay order and given the reasons which I gave for that order in the principal judgment (Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd (2016) 243 FCR 474; [2016] FCA 787), I am of the view that MCI and its associates ought not to communicate with group members at all other than to inform them upon enquiry by one or more group members of the circumstance that this proceeding is permanently stayed. As I see matters at the moment, MCI ought not to initiate any communication whatsoever with any group members while this proceeding remains permanently stayed. I am also of the view that it would be appropriate for MCI to make clear on the website which it has established for the purposes of this proceeding that this proceeding remains permanently stayed. I expect that the website will be amended in order to make this clear. 15 In light of the fact that this proceeding remains permanently stayed and in light of the remarks which I have made at [13]–[14] above, I do not think it necessary for the Court to make any orders of the kind claimed by Mr Jones nor do I consider it necessary or appropriate for the Court to accept the undertaking proffered by MCI and also by BSL. 16 If MCI and/or BSL engage in conduct in the future which misrepresents the status from time to time of this proceeding, then it would be open to Mr Jones and/or TWE to bring a further application seeking to restrain MCI and/or BSL from making misleading or inappropriate comments. 17 The observations which I have made at [16] above should not be taken as acceptance of the proposition that the Court has the power to make orders of the kind claimed by Mr Jones in his Interlocutory Application or that, assuming it has the necessary power, it would in the future do so in the present case. 18 Any application of the kind now made which is made in the future would need to be addressed fully on its merits. 19 For the above reasons, I propose to dismiss Mr Jones' Interlocutory Application. The costs of that Application will be costs in the proceeding. 20 There will be orders accordingly. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate: Dated: 1 May 2017