Brisbane Broncos Leagues Club v Alleasing Finance Australia Pty Ltd [2011] FCA 106 (16 February 2011)

Last Updated: 18 February 2011

FEDERAL COURT OF AUSTRALIA

Brisbane Broncos Leagues Club v Alleasing Finance Australia Pty Ltd [2011] FCA 106

Citation:		Brisbane Broncos Leagues Club v Alleasing Finance Australia Pty Ltd [2011] FCA 106
Parties:		BRISBANE BRONCOS LEAGUES CLUB (ACN 010 798 679) v ALLEASING FINANCE AUSTRALIA PTY LTD (FORMERLY RENTWORKS LIMITED) (ACN 003 421 136) and TOTAL CONCEPT PROJECTS (AUSTRALIA) PTY LIMITED (ACN 073 474 772) (IN LIQUIDATION)
File number(s):		NSD 1177 of 2011
Judge:		JACOBSON J
Date of judgment:		16 February 2011
Catchwords:		PRACTICE AND PROCEDURE – Representative proceeding – Whether proceeding properly commenced under s 33C of the Federal Court of Australia Act 1976 (Cth) – Whether proceedings raise a substantial common issue of law or fact – Amendment to definition of Group Membership – Date from which amendment takes effect – Whether representative proceeding will provide an efficient and effective means of dealing with the claims TRADE PRACTICES – Exclusive dealing – obligation to acquire goods or services must have elements of compulsion and futurity – Trade Practices Act 1974 (Cth) s 47(6)
Legislation:		Federal Court of Australia Act 1976 (Cth) ss 33C, 33N, 33K Federal Court Rules; Order 13 r 2, r 3, r 3A Trade Practices Act 1974 (Cth) s 47
Cases cited:		Australian Competition and Consumer Commission v Bill Express (in liq) [2009] FCA 1022; (2009) 180 FCR 105 referred to Batten v Container Terminal Management Services Ltd [2001] FCA 1493 followed Bright v Femcare Limited [2002] FCAFC 243; (2002) 195 ALR 574 applied Multiplex Funds Management Limited v P Dawson Nominees Pty Ltd [2007] FCAFC 200; (2007) 164 FCR 275 referred to Re Ku-ring-gai Co-operative Building Society (No 12) Limited [1978] FCA 50; (1978) 36 FLR 134 discussed Stationers Supply Pty Ltd v Victorian Authorised Newsagents Association Ltd (1993) 44 FCR 35 cited Street and 7 Others v Luna Park Sydney Pty Limited [2006] NSWSC 230 followed SWB Family Credit Union Limited v Parramatta Tourist Services Pty Limited [1980] FCA 125; (1980) 48 FLR 445 discussed Wong v Silkfield Pty Limited [1999] HCA 48; (1999) 199 CLR 255 applied
Date of hearing:	24 November 2010
Date of last submissions:	24 November 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	97
Counsel for the Applicant:	Mr A J Sullivan QC with Mr A Abadee and Mr R Notley
Solicitor for the Applicant:	Slater & Gordon Lawyers
Counsel for the First Respondent:	Mr I M Jackman SC with Mr S Nixon
Solicitor for the First Respondent:	Mallesons Stephen Jaques

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1177 of 2011

BETWEEN:	BRISBANE BRONCOS LEAGUES CLUB (ACN 010 798 679) Applicant
AND:	ALLEASING FINANCE AUSTRALIA PTY LTD (FORMERLY RENTWORKS LIMITED) (ACN 003 421 136) First Respondent TOTAL CONCEPT PROJECTS (AUSTRALIA) PTY LIMITED (ACN 073 474 772) (IN LIQUIDATION) Second Respondent

JUDGE:	JACOBSON J
DATE OF ORDER:	16 FEBRUARY 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Leave be granted pursuant to s 33K(1) of the Federal Court of Australia Act 1976 (Cth) and O 13 r 2 of the Federal Court Rules to file an amended application in a form which reflects the reasons for judgment handed down today.
2. Pursuant to O 13 r 3A(1) of the Federal Court Rules, the amendment to the definition of the group take effect from the date of these orders.
3. The Applicant’s Notice of Motion filed on 17 November 2010 be otherwise dismissed.
4. The First Respondent’s Notice of Motion filed on 17 November 2010 be dismissed.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1177 of 2011

BETWEEN:	BRISBANE BRONCOS LEAGUES CLUB (ACN 010 798 679) Applicant
AND:	ALLEASING FINANCE AUSTRALIA PTY LTD (FORMERLY RENTWORKS LIMITED) (ACN 003 421 136) First Respondent TOTAL CONCEPT PROJECTS (AUSTRALIA) PTY LIMITED (ACN 073 474 772) (IN LIQUIDATION) Second Respondent

JUDGE:	JACOBSON J
DATE:	16 FEBRUARY 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1. The applicant (“the Broncos”) is a well known rugby league club. It is the representative party in the present proceeding which is brought by the Broncos under Part IVA of the Federal Court of Australia Act 1976 (Cth) (“the Act”). The Group Members on whose behalf the proceeding is brought are the Broncos and a number of other sporting clubs.
2. The gravamen of the claim is that the Group Members were induced to enter into leasing agreements with the first respondent (“Alleasing”) for the lease of digital signage equipment by a number of misrepresentations made by the second respondent (“TCP”). The representations are said to have been made to the Group Members by TCP with the authority of Alleasing.
3. In November last year I heard two Notices of Motion seeking various orders in relation to the conduct of the proceeding. The first was brought by the Broncos and the second by Alleasing.
4. The Broncos’ Notice of Motion seeks to amend the application commencing the proceeding so as to alter the description of the group on whose behalf the proceeding is brought. It also seeks to amend the description of the questions of law or fact which are said to be common to the claims of Group Members.
5. The Broncos’ motion also seeks to amend the application so as to claim a declaration that Alleasing contravened s 47(6) of the Trade Practices Act 1974 (Cth) (“Trade Practices Act”) by engaging in exclusive dealing in the supply of leasing services to Group Members in respect of the digital signage equipment.
6. Alleasing opposes the Broncos’ motion on the ground that the proposed amended application does not satisfy the requirements of s 33C(1) of the Act. In particular, Alleasing contends that the proposed amended document does not disclose a substantial common issue of law or fact as required by s 33C(1)(c).
7. Alleasing’s Notice of Motion seeks an order under s 33N(1) of the Act that the proceeding no longer continue as a representative proceeding under Part IVA of the Act. Alleasing relies on s 33N(1)(c) and (d). It contends that the proceeding will not provide an efficient and effective means of dealing with the claims of Group Members or that it is otherwise inappropriate that the claims be pursued by means of a representative action.
8. The substance of Alleasing’s claim for an order under s 33N is that the issue of whether the representations were made to each of the clubs, and whether there were reasonable grounds for the making of the alleged representations, is necessarily specific to each of the clubs.
9. Alleasing seeks to make good this proposition by pointing to the fact that each of the alleged representations is disparate and is said to have been specific to each club’s revenues, costs, location and other club-specific factors including the particular equipment which was the subject matter of the lease. Also, the representations are said to have been made on different occasions over a four year period.
10. Alleasing opposes leave to amend the application to raise the claim of exclusive dealing. The essential ground of opposition is that the Broncos’ allegation of third line forcing under s 47(6) of the Trade Practices Act cannot stand because the supply of the digital equipment by TCP could not have been conditioned upon the acquisition of leasing services from Alleasing. This is because the Broncos, and the other clubs, did not know that Alleasing was to be the lessor of the equipment when the representations are said to have been made to them, and accordingly, that it cannot be said Alleasing supplied on condition that Group Members “will acquire” services from another.

The proposed amended Statement of Claim

11. Before setting out the common questions which are said to arise, it is convenient to refer briefly to the principal paragraphs of the proposed amended statement of claim. That document was not filed but the debate between the parties was conducted on the agreed basis that it was the intention of the Broncos’ legal representatives to file a document substantially in the form of the document that was in evidence before me, subject to certain agreed deletions.
12. The proposed amended statement of claim identifies ten Group Members whose identity is currently known. They comprise the Broncos and nine other sporting and community clubs. The identified clubs comprise a wide variety of organisations, some of which are large and well known whereas others such as the Castle Hill RSL Club may be thought to be smaller and less well patronised.
13. The locations of the clubs are also widely spread. They range from the Broncos, situated in Brisbane, to clubs such as the Rooty Hill RSL Club in Rooty Hill, New South Wales.
14. The pre-contractual representations said to have been made by TCP are pleaded in paragraph 6 of the Amended Statement of Claim. The representations are said to have been made from about late 2004 to about 2008. One of the representations is said to have been that TCP had already entered into arrangements with third party advertisers who were willing to purchase advertising time on the digital signage network that would be installed by TCP in the clubs’ premises.
15. The principal representations are pleaded in paragraph 6(e). That sub-paragraph commences by alleging that TPC represented that if the Group Member entered into an arrangement proposed by TPC, then TPC would design, install and supply a digital signage system in the premises of the Group Member, comprised of plasma video screens and related equipment. The digital network is defined as the Network and the equipment is defined as the Equipment.
16. The relevant representations for the purpose of considering the common questions are pleaded in paragraph 6(e)(iv), (v) and (vi) as follows:-

“(iv) TCP or its related entity would procure on behalf of that Group Member substantial advertising content to be transmitted over the Network and displayed on each screen installed by TCP in that Group Member’s premises;

(v) the advertising content to be procured by TCP or its related entity would generate revenue for that Group Member that would exceed or, at the very least, equal the cost to the Group Member of installing the Network and paying the rental on the Equipment;

(vi) in the event that the advertising content procured by TCP or its related entity did not generate revenue for the Group Member that exceeded or, at the very least, equalled the cost to the Group Member of installing the Network and paying the rental on the Equipment, TCP would make good the shortfall;

...”

17. The representations allegedly made by TCP are said to have been express and implied and to have been communicated orally and in writing by TCP to each Group Member at different times and in different locations.
18. Particulars are provided of the oral representations said to have been made in conversations between a representative of the Broncos and representatives of TCP.
19. The following particulars are provided of the written representations said to have been made by TCP to the Broncos.

“To the extent that the TCP Representations were written they were comprised in various documents provided by TCP to the Applicant, including the following documents:

(a) TCP Written Proposal (reference NB0005) dated 18 May 2005;
(b) Revenue Agreement proffered to the Applicant in June 2005;
(c) TCP Full Service Agreement for Club Digital NetworX proffered to the Applicant in June 2005;
(d) Letter from Alleasing to the Applicant dated 1 July 2005 enclosing Rental Schedule 11169/2001 and its annexures;
(e) Rental Agreement with Alleasing proffered to the Applicant by Alleasing and TCP in July 2005.

20. The representations said to have been made by TCP to Group Members set out in paragraphs 6(e)(v) and (vi) of the Amended Statement of Claim (that is to say the nil net cost representations) are alleged to have been made by TPC with the actual and/or ostensible authority of Alleasing.
21. Paragraph 9 of the proposed Amended Statement of Claim alleges that between 2004 and 2008 Alleasing made a representation to each Group Member that:
    • if the Group Member entered into an arrangement with Alleasing and TCP by which TCP designed and installed, and Alleasing rented, the Equipment to the Group Member;
    • the Equipment would consist of the equipment described in the rental schedule provided by Alleasing.
22. Paragraph 24 of the proposed Amended Statement of Claim pleads a number of express terms of each rental agreement entered into between Alleasing and Group Members. One of the express terms is that upon the expiration or earlier termination of the rental agreement, the Group Member was required to deliver up to Alleasing the equipment in good working order and condition in accordance with clause 13.1 of the Master Rental Agreement.
23. The Amended Statement of Claim goes on to plead in paragraph 25 that on its true construction, clause 13 of the Master Rental Agreement does not require the delivery up, at the expiration or earlier determination of the rental agreement, of any equipment that was not in fact delivered to the Group Member by or on behalf of Alleasing.
24. A breach of this clause of the Master Rental Agreement appears to be pleaded in paragraph 30 (although without direct reference to clause 13 of the Master Rental Agreement). The breach is said to be that Alleasing did not rent to the Group Members all of the equipment identified in each rental schedule.
25. The effect of paragraph 31 of the proposed Amended Statement of Claim is that any liability of Group Members for failure to deliver up the equipment was caused by Alleasing’s breach of contract in failing to provide to Group Members all of the relevant equipment described in the rental schedules.
26. There is a claim made in paragraph 33 that a sub-group of members returned the Equipment to Alleasing but that Alleasing indicated that what was returned did not correspond with the description of the Equipment in the rental schedules. The members of the sub-group who have been ascertained are identified as the Mount Pritchard & District Community Club and Logan & District Services Club.
27. The allegation of exclusive dealing is pleaded in paragraphs 39 and 40. Paragraph 39(d) pleads that in the negotiations and dealings between TCP and Group Members the option to acquire the Equipment in their own right was not offered to them because it was integral to the arrangement between TCP and Alleasing that Alleasing acquire the Equipment.
28. Clause 40 goes on to plead that Alleasing engaged in the practice of exclusive dealing within the meaning of s 47(6) of the Trade Practices Act by supplying or offering to supply the services of leasing the Equipment:

“... on condition that Group Members acquire from TCP (and or its affiliate, TCM) the services of designing and installing the Equipment ...”

The Common Questions

29. The proposed amended application specifies five questions which are said to be questions of law or fact common to the claims of Group Members.
30. Three of the questions arise from the alleged representations. They are:
    • whether TCP had reasonable grounds for making the representations alleged in paragraph 6(e)(iv) and (v) of the Amended Statement of Claim (namely that TCP would procure advertising content for the Group Member, which would generate revenue at least equal to the rental cost): see proposed amended application para 4(c);
    • whether the representations alleged in paragraph 6(e)(v) and ((vi) of the Amended Statement of Claim (ie the nil net cost representations) were made by TCP with the authority of Alleasing: see proposed amended application paragraph 4(b);
    • whether Alleasing had reasonable grounds for representing (as alleged n paragraph 9 of the proposed amended statement of claim) that the equipment to be installed by TCP would be the equipment described in the rental schedule: see proposed amended application paragraph 4(a).
31. The proposed amended application annexed to the Broncos’ notice of motion included an additional common question arising from the representations but, in the course of the argument, Mr A J Sullivan QC, Senior Counsel for the Broncos, withdrew it from the list of common questions. That question was originally contained in paragraph 4(ca) of the document and was in the following terms:-

“... whether the representations as alleged in paragraph 6(e)(iv), (v) and (vi) [of the amended statement of claim] ... were made to each of the Group Members.”

32. The fourth common question is said to arise from clause 13 of the Master Rental Agreement. It is, whether, on the true construction of that clause, each Group Member was obliged to deliver to Alleasing, on the expiration or earlier termination of the rental agreement, equipment that had not in fact been delivered to the Group Member.
33. The fifth common question is said to arise from the allegation of exclusive dealing. It is whether it was a condition of the supply of the Equipment (by Alleasing) to Group Members that they enter into an agreement with TPC for the design and installation of the equipment: see paragraph 4(f) of the proposed amended application.

General principles and approach to the Notices of Motion

34. The power to amend the application so as to alter the description of the group is found in s 33K(1) of the Act. The power is also conferred by O 13 rr 2–3A of the Federal Court Rules.
35. One of the criteria for Group Membership in the definition of the group in the application filed on 8 September 2010 is that the Group Member had entered into a retainer agreement with Slater & Gordon at the commencement of the proceeding.
36. If Alleasing is successful in the motion based upon s 33C or s 33N of the Act, it will be unnecessary to consider whether leave should be granted to amend the description of the group. However, if Alleasing is unsuccessful, an issue arises as to the date from which the amendment of the group definition should take effect.
37. This issue arises because the amendment to the definition of Group Membership may give rise to limitation defences against persons who would be included in the amended definition. There is power in O 13 r 3A(1) to “otherwise order” in relation to the date on which the amendment takes effect. I will deal with this when addressing the question of the “opening of the class”.
38. As I said earlier, the gravamen of Alleasing’s attack on the proceeding is that the claims which are asserted do not “give rise to a substantial common issue of law or fact”: see s 33C(1)(c).
39. It is well established that, when used to identify the threshold requirements of s 33C(1) of the Act, the “substantial” common issue need not be one which is large or of major impact on the litigation. Rather the requirement of substantiality is directed to common issues which are “real or of substance”: Wong v Silkfield Pty Limited [1999] HCA 48; (1999) 199 CLR 255 at [28] (“Wong v Silkfield”).
40. It is also well established that a proceeding which passes the threshold of s 33C may later be terminated as a representative proceeding under s 33N: Wong v Silkfield at [26], [29].
41. I therefore propose to approach the present motions by dealing first with the threshold questions under s 33C. I will deal with the questions arising from the representations before turning to the “clause 13” issue. I will then address the question of whether leave to amend ought to be granted to raise the claim of exclusive dealing before turning to the application made by Alleasing under s 33N.
42. Finally, I will, to the extent necessary, consider the question of the amendment of the definition of the group and the date from which any such amendment should take effect.

Paragraph 4(c) of the Amended Application – reasonable basis for the “nil cost” representations

43. Mr I M Jackman SC, who appeared for Alleasing, submitted that the abandonment of sub-paragraph (ca) as a common question led to the inevitable result that there cannot be a separate question as to whether TCP had reasonable grounds for the making of the representations.
44. The effect of Mr Jackman’s submission was that, once it is accepted that the making of the alleged representation does not raise a common question, it must follow that the representations are disparate and necessarily specific to particular group members.
45. Thus, Mr Jackman submitted that the question of whether there were reasonable grounds must be specific to a particular club’s revenues and costs so that whether there was a reasonable basis for making the representation to a particular club says nothing as to whether there was such a basis for making a representation to another.
46. Whilst it may be difficult to cavil with the logic of Mr Jackman’s submissions, it seems to me that the approach which he adopted is not consistent with the wide view of the scope of s 33FC which was taken in Wong v Silkfield at [11] – [12].
47. Also, in Batten v Container Terminal Management Services Ltd [2001] FCA 1493 at [12] (“Batten”), Kiefel J observed that the objectives of the representative procedures under Part IVA include the reduction of costs and promotion of efficiency in the use of the Court’s resources. Her Honour went on to say that a proceeding which reduces a substantial amount of evidence which would need to be tendered in a large number of cases comes within that objective.
48. In Batten at [11], her Honour proceeded on the basis that the respondents may be able to show some lack of coincidence in the representations that were alleged to have been made to Group Members. However, her Honour was of the view that the respondents’ emphasis upon the specificity of the representations failed to recognise the common factual areas in the events leading to the making of the representations. Her Honour considered this to be sufficient for the purposes of s 33C(1)(c).
49. It is true that in the present case the Broncos have not identified in the amended application the commonality of the form of the representations or the circumstances in which they are alleged to have been made. However, in my view, it is sufficiently clear from sub-paragraph (c), when read in light of the pleading, that there will be some commonality between the claims of Group Members on the issue of whether TCP had reasonable grounds.
50. One area in which there will be common factual questions can be seen in the pleading in paragraph 6(b) that TCP represented at the date of the representations to each Group Member that it had already entered into arrangements with third party advertisers.
51. The evidence going to the arrangements undertaken with advertisers and the extent to which those arrangements informed the question of “reasonable grounds” is therefore likely to be common to the claim of each Group Member.
52. This seems to me to show that there will be some common factual areas in the events leading to the specific representations allegedly made to each Group Member in much the same way as the commonality which Kiefel J found to exist in Batten.

Proposed Amended Application paragraph 4(b) – the authority question

53. The effect of paragraph 4(b) of the proposed amended application is that a common question of law or fact is said to arise as to whether the “nil net cost” representations, alleged to have been made to each Group Member by TCP, were made with the authority of Alleasing.
54. Notwithstanding the fact that the alleged representations may be said to be discrete, it is sufficiently clear that the representations are alleged to be in similar form and to similar effect. The question of whether the “nil net cost” representations pleaded in paragraphs 6(e)(v) and (vi) of the proposed amended statement of claim were made with the actual or ostensible authority of Alleasing is likely to raise common factual areas as to the knowledge and involvement (if any) of Alleasing in the making of the alleged representations.
55. This is sufficient to raise a threshold question under s 33C(1)(c). Whilst such a question need not be one which is of major importance to the proceeding as a whole, in the present case the question of authority will be very significant to the claims of all Group Members because it is the foundation for most of the claims made against Alleasing.

Paragraph 4(a) of the Proposed Amended Application – Alleasing Representation

56. There may be some degree of overlap between the common issues stated in paragraphs 4(a) and 4(e). The allegation in paragraph 9 of the proposed amended statement of claim that Alleasing represented that the equipment would correspond with that which was described in the rental schedule, seems to me to be bound up with the question of construction of clause 13 stated in paragraph 4(e) of the proposed amended application.
57. For the reasons mentioned below, I doubt that either of those questions raises a real or substantial issue of law or fact in the sense referred to in Wong v Silkfield.
58. In short, it seems to me to be plain that the subject matter of the relevant rental agreements was the Equipment listed in the Rental Schedule. That is so regardless of whether the issue is framed in contract or as a representation in trade or commerce under the Trade Practices Act.

Paragraph 4(e) of the Proposed Amended Application – the clause 13 issue

59. Mr Jackman conceded that on its true construction, clause 13 of the Master Rental Agreement does not require Group Members to deliver up equipment that was not in fact delivered to them.
60. This concession is hardly surprising. Ordinarily, the subject matter of a lease or rental agreement will be those items which are specified in it and the lessee will not have any obligations in respect of items of equipment not specified in it.
61. Of course, in some cases it may be possible for a lessee to undertake obligations to a lessor in respect of some items of property not specified in the contract. Strictly speaking, the question of whether such an issue arises should await the close of the pleadings. But it would be inconsistent with the overarching purpose of case management to ignore Mr Jackman’s concession.
62. In any event, there are other defects in the claim as presently propounded. The difficulties are explained in the affidavit of Ms Moira Leonie Saville sworn 17 November 2010. The effect of paragraphs 18 to 26 of her affidavit is that, even if a claim arises under clause 13, only five clubs are able to make the claim. Indeed, the Broncos as the representative party cannot make a claim under clause 13 because it did not enter into a contract with Alleasing. Rather, it contracted with a different company known as Alleasing Pty Limited.
63. Nevertheless, the defects in the claim in relation to the clause 13 issue do not affect the threshold question under s 33C because I have come to the view that the proposed amended application satisfies the requirements of that provision in relation to the “reasonable grounds” and “authority” questions specified in paragraph 4(b) and 4(c).

Exclusive Dealing

64. The two essential elements of the conduct which is proscribed by s 47(6) of the Trade Practices Act are indicated by the phrases “on the condition that” and “will acquire goods or services from another person”: see Stationers Supply Pty Ltd v Victorian Authorised Newsagents Association Ltd (1993) 44 FCR 35 at 61 (Ryan J).
65. There is some difference in the statements in the leading authorities as to whether the practice of exclusive dealing under s 47(6) necessarily involves the imposition of a condition, and by whom the condition is to be imposed.
66. In the Re Ku-ring-gai Co-operative Building Society (No 12) Limited [1978] FCA 50; (1978) 36 FLR 134 at 167–8 (the “Ku-ring-gai case”, Deane J (with whom Brennan J agreed) said that the practice does not necessarily involve the imposition of a condition. It involves supply upon a condition and looks to supply of goods or services on that condition.
67. By contrast, in SWB Family Credit Union Limited v Parramatta Tourist Services Pty Limited [1980] FCA 125; (1980) 48 FLR 445 at 464–5 (“SWB”), Northrop J said that a condition in the nature of an obligation must be imposed upon the person dealing with the corporation. His Honour observed that in the Ku-ring-gai case, and another relevant authority, the corporations imposed an obligation upon persons to whom they supplied services that those persons acquire goods or services from other persons designated or approved by the corporation.
68. The statements made by Northrop J appear to state the ordinary circumstances in which third line forcing, contrary to s 47(6), arises. The wrongdoer imposes a condition on the person to whom it supplies the goods or services that the person take other goods or services from a third party.
69. It may be sufficient to enliven the operation of s 47(6) that the condition be attached to the supply of the goods or services at the instigation of a person other than the supplier of the goods, as for example where the condition is imposed at the instigation of the third party from whom the person is required to acquire the other goods or services: see Australian Competition and Consumer Commission v Bill Express (in liq) [2009] FCA 1022; (2009) 180 FCR 105 at [61]; see also the Ku-ring-gai case at 167.
70. But what seems to me to be essential in either case is that there be an element of futurity in the obligation on the person to acquire goods or services from the third party. This is found in the express language of s 47(6) in the words “will acquire”. It is also supported by judicial pronouncement.
71. As Northrop J said in SWB at 464, it does not matter whether the condition is legally binding, but it must have some attributes of compulsion and futurity. His Honour said this may be expressed in the form “if we do this, you will (must) do that.”
72. It is also consistent with the observations of Deane J in the Ku-ring-gai case at 167. The effect of his Honour’s observations is that the essential requirement is the obligation on the recipient of the goods or services to acquire goods or services of a particular kind or description from another person. It is implicit in this that the obligation to acquire the goods or services will be an obligation to be fulfilled in the future.
73. It is difficult to see how the sub-section could otherwise have any sensible operation. This may be seen by posing the question, how could a corporation be said to have supplied or offered to supply goods or services on a condition that has already been fulfilled? If the condition were fulfilled before the supply it would no longer be a condition of supply. I do not think that this exposes a gap in the legislation. It seems to me that s 47(6) requires an element of futurity whereas s 47(7) deals with the converse situation, namely a refusal to supply to a person for the reason that the person has not acquired, or agreed to acquire, goods or services from another person.
74. This exposes the vice in the pleading of exclusive dealing under s 47(6) in the proposed amended statement of claim. The condition pleaded in paragraph 40 is said to arise by implication from the circumstances referred to in paragraph 39. This is what is meant by the opening words of paragraph 40, “[i]n the premises”.
75. The circumstances set out in paragraph 39 contain no element of futurity. There is no allegation that Alleasing or TCP imposed on Group Members, as a condition of the supply of leasing services by Alleasing, an obligation in the future to acquire the services of design or supply from TCP.
76. Even if it is sufficient to enliven the operation of s 47(6) that there be a condition which was not actually imposed by Alleasing or TCP, the facts and circumstances pleaded in paragraph 39 do not contain the requisite element of futurity.
77. The pleading in paragraph 39 also contains other defects to which Mr Jackman referred in argument. I do not need to repeat them. It is sufficient to say that on any view, the pleading does not satisfy the requisite elements of a claim under s 47(6).
78. It follows that I will not permit the claim of exclusive dealing to be raised in the form put forward in the proposed amended application. Nor can it constitute a common question for the purposes of s 33C(1)(c) of the Act.
79. Mr Sullivan sought to overcome the difficulties to which I have referred by invoking the provisions of s 47(7) of the Trade Practices Act. However, the short answer to this is that no such claim is pleaded.
80. It may be possible for Alleasing to plead a claim under s 47(6) or s 47(7) of the Trade Practices Act which conforms with the requirements of those provisions. However, at present, no such issue is properly raised.

Section 33N

81. The operation and application of s 33N(1) was referred to by the High Court in Wong v Silkfield at [33] – [35]. It was discussed by Full Courts in Bright v Femcare Ltd [2002] FCAFC 243; (2002) 195 ALR 574 (“Bright v Femcare”), in particular at [128] – [130] and [133] – [136]; and Multiplex Funds Management Limited v P Dawson Nominees Pty Ltd [2007] FCAFC 200; (2007) 164 FCR 275, in particular at [7], [13], [103] and [130] – [133].
82. It is unnecessary to repeat what was said in those cases. In my view, it is sufficient to say that there is a real benefit in determining the common issues to which I referred above even though there are, clearly enough, a large number of other non-common issues.
83. The list of non-common issues was referred to in the affidavit of Ms Saville at [41]. However, as Kiefel J said in Bright v Femcare at [136], a consideration as to how many common issues can be seen to arise is not particularly influential; what is more telling is what the resolution of the common claims might mean and how much evidence might thereby be made unnecessary.
84. In the present case, notwithstanding the differences between the individual representations, it seems to me to be likely that there will be a considerable degree of overlap between the evidence of the Group Members (and TCP) in relation to the circumstances surrounding the making of the alleged representations, as well as on the question of reasonable grounds.
85. This is likely to be so, even though the representations are alleged to have been made on separate occasions over a four year period. Although the pleadings have not yet closed, it seems to me that the documentary evidence is likely to be similar and that this will reduce the amount of evidence that would otherwise be necessary.
86. What seems to me to be of particular importance is the likely commonality of the evidence on the question of whether TCP had the authority of Alleasing to make the alleged representations. A finding either way on that question in the present proceeding is likely in my opinion to be telling in relation to the claims of Group Members generally.
87. In my opinion, these considerations outweigh the force of the counter-veiling submissions made by Mr Jackman in relation to the inefficiency and inappropriateness of the matter continuing as a representative proceeding.
88. I recognise the force of what Mr Jackman submitted as to the very small size of the group and the likelihood of separate proceedings by Alleasing to recover unpaid rental from about six of the Group Members.
89. Nevertheless, in my view, there are real benefits to be gained by determining the common issues to which I have referred in the proceeding in its present form.
90. I am therefore not satisfied that it is in the interests of justice to make an order under
    s 33N(1) on the inefficiency or otherwise “inappropriate grounds” stipulated in s 33N(1)(c) or (d).

Date of amendment of definition of the group: “opening of the class”

91. It follows from what I have said above that I will grant leave to the
    Broncos to amend the application so as to amend the definition of the group by deleting from the definition the requirement that the Group Members have retained Slater & Gordon.
92. The effect of doing this is to “open the class” of Group Members with the possibility that the group may include new members who entered into rental agreements with Alleasing more than six years ago.
93. This seems to me to provide a sufficient basis to “otherwise order” in relation to the date at which the amendment of the group definition will take effect: O 13 r 3A(1) of the Federal Court Rules. In my view, the amendment should take effect from the date of the orders rather than from the date of the proceeding.
94. In coming to this view, I adopt the approach taken by Brereton J in Street and 7 Others v Luna Park Sydney Pty Limited [2006] NSWSC 230.
95. In that case, his Honour held at [47] that the usual rule that an amendment relates back to the date of filing of the original document does not apply to an amendment which adds a party. This is because where a party is added to a proceeding, the proceeding against it is only commenced at the date of joinder and the relation-back doctrine does not apply so as to deprive a party joined after the expiry of the limitation period from raising a limitation defence. See also the observations of Brereton J at [51] – [52].
96. I accept Mr Jackman’s submission that the position stated by Brereton J as applicable in non-representative proceedings ought also apply to an amendment in a proceeding under Part IVA because the effect of the amendment is to add new Group Members on whose behalf the proceeding is brought. This may potentially include persons whose claims are statute-barred, even though such claims may not have been barred when the proceeding was commenced.
97. That is sufficient to warrant the exercise of my discretion under O 13 r 3A(1).

I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated: 16 February 2011