Impiombato v BHP Group Limited (No 4) [2023] FCA 1354

Impiombato v BHP Group Limited (No 4) [2023] FCA 1354

The group member definition, read objectively in the context of the statement of claim including the causation pleadings based on the ASX, LSE and JSE markets, covers persons who during the Relevant Period entered into contracts to acquire interests in fully paid-up ordinary shares in BHP Ltd through trading on the ASX and/or fully paid-up ordinary shares in BHP Plc through trading on the LSE or JSE. It does not extend to acquisitions through other trading platforms such as Chi-X merely because clearing and settlement were facilitated by the ASX.

Jurisdiction
Australia
Judgment Date
03 November 2023
Procedural Posture
Representative Proceeding / Determination of an Issue Concerning the Form of an Opt Out Notice and the Interpretation of the Group Member Definition
Outcome
BHP Ltd's interpretation of the group member definition was preferred; the applicants were ordered to provide a revised draft opt-out notice reflecting the Court's reasons, and costs were reserved.
Legal Topics
['opt Out Notice' 'group Member Definition' 'share Acquisitions on ASX, LSE and Jse' 'federal Court Representative Proceeding Requirements']
['practice and Procedure' 'representative Proceedings' 'commercial and Corporations'] ['opt Out Notice' 'group Member Definition' 'share Acquisitions on Asx, LSE and Jse' 'federal Court Representative Proceeding Requirements']

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Procedural Posture

Representative Proceeding / Determination of an Issue Concerning the Form of an Opt Out Notice and the Interpretation of the Group Member Definition

Legal Issues

  1. 1 ['Whether the group member definition covers persons who, during the Relevant Period, entered into contracts to acquire shares in BHP Ltd or BHP Plc on trading platforms other than the ASX, the LSE or the JSE.' 'Whether the opt-out notice should describe group members as including persons who acquired shares through other trading platforms such as Chi-X.']

Ratio Decidendi

The group member definition, read objectively in the context of the statement of claim including the causation pleadings based on the ASX, LSE and JSE markets, covers persons who during the Relevant Period entered into contracts to acquire interests in fully paid-up ordinary shares in BHP Ltd through trading on the ASX and/or fully paid-up ordinary shares in BHP Plc through trading on the LSE or JSE. It does not extend to acquisitions through other trading platforms such as Chi-X merely because clearing and settlement were facilitated by the ASX.

Court Disposition

BHP Ltd's interpretation of the group member definition was preferred; the applicants were ordered to provide a revised draft opt-out notice reflecting the Court's reasons, and costs were reserved.

Orders

  • ["The applicants confer with the respondent and provide to the Court a revised draft of the opt-out notice that reflects the Court's reasons for judgment dated today." 'Costs be reserved.']