J Wisbey & Associates Pty Ltd v UBS AG (No 3)

This decision can be explained confidently as a Federal Court settlement approval judgment in a competition class action. It should not be treated as a final merits ruling that the alleged cartel conduct was proved. The Court's reasons set out the pleaded case, the respondents' denials, the settlement terms that required approval, and observations on issues including pass-through and class closure.

There is also an important limit. The available text of the reasons is truncated before the end. That means the safest public explanation is to focus on what is clearly established by the published orders and the parts of the reasons that are available. The clearest confirmed holding is that Beach J approved the settlement and the settlement distribution scheme, and made related procedural orders. Any broader doctrinal statement about pass-through should be read cautiously unless checked against the full reasons.

J Wisbey & Associates Pty Ltd brought the proceeding under Part IVA of the Federal Court of Australia Act against five respondent banks: UBS AG, Barclays Bank Plc, Citibank N.A., JPMorgan Chase Bank N.A. and NatWest Markets Plc. The commercial setting was the foreign exchange market. The applicant alleged that the respondents and other participants engaged in cartel conduct affecting FX instruments.

The pleaded case, as described by Beach J, was that there was either a global FX market or, alternatively, an Australian FX market in which dealers supplied FX instruments to customers, including in Australia. The applicant alleged that during the relevant period the respondents and other alleged cartel participants arrived at an arrangement or understanding under which they would co-operate in relation to trading FX instruments by sharing non-public information, co-ordinating trading, and keeping the existence of the understanding and conduct giving effect to it confidential. The reasons refer to this as the FX understanding.

The applicant also alleged a series of more confined arrangements or understandings in 150 chatgroups, described as FX chatroom understandings. The pleaded conduct was said to be inferable from conduct between FX traders in various internet chatgroups. On the applicant's case, this conduct increased volatility, increased adverse selection risk and decreased competition, which in turn increased spreads and affected mid-points for trades in affected currency pairs. The applicant said those effects caused loss to the applicant and group members.

The group members were persons who, between 1 January 2008 and 15 October 2013, were parties to FX instruments in relation to one or more pleaded affected currency pairs arranged in Australia above the minimum transaction volume, and who suffered loss or damage by reason of the respondents' conduct.

The respondents denied the allegations and raised a wide range of defences and objections. Beach J summarised those disputes in a way that shows how complex competition damages litigation can become. The respondents said there was no global FX market or Australian FX market as defined by the applicant. They denied making or giving effect to the alleged overarching FX understanding and denied making or giving effect to the alleged FX chatroom understandings.

They also disputed the competition consequences alleged by the applicant. In particular, they said any relevant provision did not have the purpose or effect of fixing prices, restricting supply or substantially lessening competition. They denied that their conduct caused loss or damage to the applicant and group members in the manner alleged.

The respondents also raised additional points with direct commercial significance. They said claims for older loss were barred by the six-year limitation period so far as loss was incurred before 27 May 2013. They said any artificial impact on spreads should be set off against profits achieved by being on the other side of loss-making transactions. They said some claims could not be recovered because of releases obtained in overlapping overseas proceedings. And they said any loss or damage that was passed on or passed through could not be recovered.

The immediate issue before Beach J was not whether the applicant would win at trial. The issue was whether the proposed settlement should be approved under section 33V(1) of the Federal Court of Australia Act 1976 (Cth). The Court said the central question was whether the proposed settlement was a fair and reasonable compromise of the claims made on behalf of the group members who would be bound by it.

The reasons set out the familiar settlement approval framework. The Court considered fairness between the parties, often described as inter partes fairness, and fairness between different group members, often described as inter se fairness. The Court also emphasised that settlement reasonableness is a range, not a single perfect answer, and that the Court takes a protective role because the interests of the parties and the interests of all group members may not fully align.

That protective role mattered here because the Court also had to consider the fairness of the proposed distribution process. The reasons note concerns such as whether the distribution scheme treated like group members alike, whether the procedures for lodging and assessing claims were appropriate, whether the proposed administrator was suitable, and whether the process included appropriate checks and balances.

The reasons also contain observations on pass-through and class closure. Those observations help explain the litigation risks that informed the settlement. But the available text does not support treating this case as a complete final authority on every aspect of pass-through under Australian competition law.

Beach J approved the settlement of the proceeding and the settlement distribution scheme. The orders state that the settlement was approved on the terms of the deed of settlement executed on 1 May 2025 and the settlement distribution scheme annexed to affidavit material. The Court also authorised the applicant, nunc pro tunc, to enter into and give effect to the deed and the transactions contemplated by it on behalf of group members who met the class definition and had not opted out.

The Court confirmed that the persons affected and bound by the orders and the settlement were the applicant, the respondents and group members. It also dealt specifically with categories of registrants. Certain persons identified in affidavit material were to be treated as registered group members for the purposes of the settlement distribution scheme. Bot registrants identified in the affidavit material were treated as invalid registrations and not as registered group members.

One of the most practically important orders for business readers is this: a group member who was not a registered group member would remain a group member for all purposes of the proceeding, but would not be permitted to seek any benefit under the approved settlement. In other words, staying within the class did not automatically preserve an entitlement to payment under the settlement distribution scheme.

The Court appointed Maurice Blackburn as administrator of the settlement distribution scheme, with liberty to apply in relation to matters arising under the scheme. The Court also approved deductions from the settlement sum, including legal costs and disbursements, ATE insurance costs, administration costs up to the approved amount, and reimbursement to the applicant for time and expenses incurred as representative party. Confidentiality orders were made over parts of Schedule A. The administrator was directed to return to the Court within 30 days of completing the administration process to seek dismissal orders and orders vacating costs orders in the proceeding.

The available reasons show that Beach J treated pass-through as a serious and difficult issue in the case. The respondents argued for pass-through on two levels. First, they said that where a direct purchaser bought a product or service from a contravening party and then resold it to indirect purchasers, any increased price could be passed through as a component of the on-sale price. Second, they raised a more indirect argument involving retail FX platforms operating via a dealer model, where any loss might form part of an overall cost structure recovered through sales of the purchaser's own products or services.

The Court said the availability of a so-called passing on or pass-through defence under Australian competition law is uncertain. The reasons refer to earlier Australian and overseas authorities and explain the conceptual problem in practical terms. If a claimant paid an overcharge, it does not automatically follow that the claimant's financial position was adversely affected. If the claimant fully passed through the overcharge to customers, the claimant may have suffered no financial loss. The comparison under the compensatory provisions is between the claimant's actual financial position and the position the claimant would have been in but for the contravening conduct.

The reasons also explain why this matters for class actions. If both direct and indirect purchasers can claim, there is a risk of double recovery unless the law has a coherent way to deal with pass-through. The available text discusses these issues at length, but because the reasons are truncated, this page does not present the case as finally resolving every aspect of the doctrine. The safer point for businesses is practical: if your claim depends on an alleged overcharge, your own pricing, margin and downstream sales evidence may become central.

The reasons record that the settlement followed a soft class closure mechanism and two mediations. That procedural history matters because class closure and registration are not just technical steps. They shape who can participate in a settlement distribution and on what terms.

The orders make the practical effect very clear. Some people were treated as registered group members. Some registrations were treated as invalid. And group members who were not registered remained group members for the proceeding but could not seek any benefit under the settlement. For businesses, that is a strong reminder that class action notices, registration deadlines and claim forms should be treated as commercially important documents, not background legal administration.

The Court also looked at the machinery for distributing the settlement sum. It appointed an administrator, approved administration costs up to a stated amount, and gave the administrator liberty to apply back to the Court if issues arose. This reflects the Court's concern with inter se fairness, meaning fairness between group members, and with having a process that is workable, cost-effective and consistent.

There are two practical readings for business owners and in-house teams. First, if your business buys in a market affected by alleged anti-competitive conduct, do not assume that a damages claim will be straightforward. You may need evidence not only of the transactions themselves, but also of how the alleged overcharge affected your business in real financial terms. That can include invoices, trade confirmations, internal pricing models, customer contracts, margin reports and management accounts.

Second, if your business is part of a representative proceeding, monitor every procedural step. Opt-out notices, registration notices, settlement notices and requests for supporting documents can all affect whether your business is bound, whether it can claim, and how much it may recover. This case shows that a business can remain in the class but still lose access to settlement benefits if it does not satisfy the registration requirements approved by the Court.

It is also worth reading this case for what it is not. It is not a general contract case and not an unfair contract terms authority. Its value lies in competition damages risk, settlement approval principles, and the practical administration of class action settlements.

The proceeding was filed in the Federal Court under file number VID 567 of 2019. The reasons identify the relevant transaction period for group members as 1 January 2008 to 15 October 2013. The parties reached an in-principle settlement in February 2025, recorded in a deed executed on 1 May 2025. Beach J approved the settlement on 15 August 2025, and the reasons were published on 26 August 2025.

On the available material, the public explanation of the case should remain focused on settlement approval and the procedural orders that followed from it. The reasons clearly include observations on pass-through and related issues, but the available text does not run to the end of the judgment.