prelims on the run

Latest full Judgement delivered in PIF case.
I reproduce the Orders and some sections of the Judgement
which appear to be self-explanatory.
An idea of a “reflective loss group” ditched by the Judge.
-------------------------------------
NSD 324 of 2009
Judge: Perram J Date of Judgement: 17 March 2014
FEDERAL COURT OF AUSTRALIA
Hodges v Waters (No 3) [2014] FCA 233

THE COURT ORDERS THAT:
1. Paragraphs 1 to 3 of the orders sought by the applicants in their application dated 28 February 2014 be dismissed.
2. The balance of the application be stood over to Wednesday 19 March 2014 at 9:30 am.
3. The applicants pay the respondents’ costs of the application as taxed or agreed.
4. Upon condition that they pursue the appeal expeditiously, the applicants be granted leave to appeal from Order 1 hereof.
5. The hearing of the separate questions listed for 3 April 2014 be vacated to a date to be fixed.
6. The matter be stood over for further directions on 19 March 2014 at 9:30 am.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

17 The consequence is that paragraph 3 of the Second Further Amended Application identifies the nature of the group members’ claims as being claims by unit holders for reflective loss. It does not include claims by unit holders for non-reflective loss. Once that is appreciated it will follow that the Court has no power to order the creation of a sub-group of members who have suffered non-reflective loss. This would not be a sub-group. It would be a different case.

18 Mr Lee sought to resist this conclusion. He submitted that all group members in cases such as the present had different losses and the suit would inevitably devolve to an examination of their individual positions. Some would claim reflective losses, others non-reflective losses as well. What was involved was merely to be seen as the clarification of the differing types of loss involved. This argument assumes, however, that the nature of the claims of group members includes losses of all kinds. This assumption is inconsistent with the originating process which reveals the nature of the claims to be limited to reflective losses.

19 I therefore reject the application to direct the establishment of the proposed sub-group. In that circumstance, it is unnecessary for me to consider the auditors’ submission based on Aon Risk Services Australia Ltd v Australian National University (2009) 2239 CLR 175 that even if the Court has the power to order a sub-group that it ought not in its discretion to do so. I do not think I can safely navigate, at least in this case, the exercise of a discretionary power whose existence I do not accept.
I would say, however, as I did say in Mercedes (No 8),
that the complete transformation of this case from one kind
--------------------------------------------
Regards,