Federal Court of Australia

Zonia Holdings Pty Ltd v Commonwealth Bank of Australia Limited (No 2) [2025] FCAFC 123

ORDERS

THE COURT DECLARES THAT:

1.    The respondent (CBA) contravened Listing Rule 3.1 of the Australian Securities Exchange (ASX) Listing Rules and s 674 of the Corporations Act 2001 (Cth) by failing to disclose, on or about 24 April 2017:

(a)    that from around November 2012 to 8 September 2015:

(i)    CBA had failed to give threshold transaction reports (TTRs) on time for approximately 53,506 cash transactions of $10,000 or more processed through Intelligent Deposit Machines (IDMs) following the introduction of IDMs (September 2015 Late TTRs);

(ii)    the September 2015 Late TTRs represented between approximately 80% and 95% of threshold transactions that occurred through CBA’s IDMs during the period from November 2012 to September 2015;

(iii)    the September 2015 Late TTRs had a total value of approximately $624.7 million dollars; and

(iv)    the September 2015 Late TTRs had not been lodged, at least in part, because of a systems error which occurred in or around November 2012; and

(b)    that from around 8 September 2015 or shortly thereafter, CBA was aware (within the meaning of ASX Listing Rule 19.12) that from at least 20 October 2012 to 8 September 2015, CBA failed to conduct account level monitoring with respect to 778,370 accounts.

THE COURT ORDERS THAT:

2.    The appeal be allowed in part.

3.    The cross-appeal be dismissed.

4.    Paragraph 1 of the orders made by the primary judge on 28 May 2024 in proceeding VID 1085 of 2017 (Zonia proceeding) be set aside.

5.    The individual claim of the appellant be dismissed.

6.    Paragraph 7 of the orders made by the primary judge on 28 May 2024 in the Zonia proceeding be set aside and:

(a)    in lieu thereof, the common questions be amended and be answered in the form set out in the Annexure to these orders; and

(b)    pursuant to s 33ZB of the Federal Court of Australia Act 1976 (Cth), those answers be binding on the group members in this proceeding, save for those group members who have opted out pursuant to s 33J.

7.    The balance of the Zonia proceeding be remitted to a single judge for case management, hearing and determination (subject to any orders that may be made under ss 33N, 33Q, 33R or 33S of the Federal Court of Australia Act).

8.    Each party bear its own costs of the appeal and the cross-appeal.

9.    Paragraphs 1 and 2 of the orders made by the primary judge on 20 September 2024 in the Zonia proceeding be set aside and in lieu thereof it be ordered that the applicants in the Zonia proceeding and proceeding NSD 1158 of 2018 (Baron proceeding) (together, the proceedings) be jointly and severally liable to pay 80 per cent of the respondent’s costs of and incidental to the proceedings on a party and party basis, except for the costs for which the respondent is liable pursuant to paragraph 6 of the orders made on 10 July 2019 in the Zonia proceeding, and paragraph 5 of the orders made on 10 July 2019 in the Baron proceeding, such costs to be assessed on a lump sum basis.

10.    There be liberty to apply if further procedural orders are necessary to facilitate the determination of the lump sum costs referred to in paragraph 9.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Annexure

Answers to Common Questions

Defined terms used below have the meaning ascribed to them in the Third Further Amended Statement of Claim (filed in the Zonia proceeding) and the Further Amended Statement of Claim (filed in the Baron proceeding), together the Harmonised Statement of Claim (HSOC).

Markup shows changes from the questions and answers annexed to the orders of the primary judge made on 28 May 2024.

1.    Did the following information exist at any point of time in the period 16 June 2014 to 3 August 2017 (Relevant Period):

(a)    the June 2014 Late TTR Information;

(b)    the August 2015 Late TTR Information;

(c)    the September 2015 Late TTR Information;

(d)    the June 2014 IDM ML/TF Risk Assessment Non-Compliance Information;

(e)    the August 2015 IDM ML/TF Risk Assessment Non-Compliance Information;

(f)    the June 2014 Account Monitoring Failure Information;

(g)    the August 2015 Account Monitoring Failure Information;

(h)    the September 2015 Account Monitoring Failure Information; and

(i)    the Potential Penalty Information.

The August 2015 IDM ML/TF Risk Assessment Non-Compliance Information existed from 26 October 2015 onwards.

The September 2015 Late TTR Information existed from 22 January 2016 onwards.

The September 2015 Account Monitoring Failure Information existed from 13 April 2017 onwards.

By 24 April 2017, the Potential Penalty Information existed.

Otherwise, no.

2.    Was CBA aware (within the meaning of ASX Listing Rule 19.12) of the information referred to in paragraphs 1(a) to 1(i) as at each of the dates pleaded in the HSOC?

No, except to the extent that:

(a)    as at 26 October 2015, CBA was aware of the August 2015 IDM ML/TF Risk Assessment Non-Compliance Information;

(b)    as at 24 April 2017, CBA was aware of the September 2015 Late TTR Information;

(c)    as at 24 April 2017, CBA was aware of the September 2015 Account Monitoring Failure Information;

(d)    as at 24 April 2017, CBA was aware of the Potential Penalty Information (to the extent that it was dependent on awareness of the September 2015 Late TTR Information and the September 2015 Account Monitoring Failure Information).

3.    Was the information referred to in paragraphs 1(a) to 1(i), and/or any combination of two or more items of that information:

(a)    material information;

(b)    not generally available,

within the meaning of ASX Listing Rule 3.1 or Chapter 6CA of the Corporations Act?

As at 24 April 2017, the September 2015 Late TTR Information and the September 2015 Account Monitoring Failure Information were each The information referred to in paragraphs 1(a) to (i) and/or any combination of two or more items of that information was not items of material information and were was not generally available within the meaning of ASX Listing Rule 3.1 or Chapter 6CA of the Corporations Act.

Otherwise, no.

4.    Was some or all of the information referred to in paragraphs 1(a) to 1(i) above subject to the exceptions identified in Listing Rule 3.1A?

No.

5.    Did the Respondent contravene section 674 of the Corporations Act by failing to disclose some or all of the information referred to in paragraphs 1(a) to 1(i) above in accordance with Chapter 6CA of the Corporations Act, and if so, at what point in time did the disclosure obligation arise?

The Respondent contravened s 674 of the Corporations Act by not disclosing the September 2015 Late TTR Information and the September 2015 Account Monitoring Failure Information on or about 24 April 2017. Otherwise, no.

No.

6.    Did the Respondent make the Compliance Representations and/or the Continuous Disclosure Representations at any point in time during the Relevant Period, and if so at what point in time?

No.

7.    Did the Respondent contravene section 1041H of the Corporations Act or section 12DA(1) of the ASIC Act or section 18 of the Australian Consumer Law by making, maintaining and/or failing to qualify:

(a)    the Compliance Representations; and/or

(b)    the Continuous Disclosure Representation?

No.

8.    Were there any defects in the Cleansing Notice issued by the Respondent on 12 August 2015 and if so, what was the nature of those defects?

No.

9.    Did the Respondent contravene s 708AA(10) of the Corporations Act by issuing the Cleansing Notice on 12 August 2015 and not, within a reasonable time after becoming aware of any defects in the Cleansing Notice, giving the ASX a notice that set out the information necessary to correct the defects?

No.

10.    Whether, if established, one or more of the alleged Market Contraventions had the effect that the price of acquisition for CBA Shares was greater than their true value and/or the market price and/or the Entitlement Offer Price that would have prevailed but for the Market Contraventions (“inflation”) and if so or in any event:

(a)    What was the amount of the inflation in the CBA Shares during some or all of the Relevant Period

(b)    Which of the Market Contraventions caused the price of CBA Shares to be inflated

(c)    whether statutory compensation is recoverable by the Applicants and some or all of the Group Members;

(d)    the correct measure of the statutory compensation for which the Respondent may be liable to the Applicants and some or all of the Group Members; and

(e)    whether the Court should make the declarations sought in the Further Amended Originating Applications.

The Applicants did not establish that one or more of the alleged Market Contraventions had the effect that the price of acquisition for CBA Shares was greater than their true value and/or the market price and/or the Entitlement Offer Price that would have prevailed but for the Market Contraventions.

In relation to (a): The Appellants have not established any amount of inflation in the CBA Shares during any part of the Relevant Period.

In relation to (b): Does not arise because of the answer to (a).

In relation to (c): Insofar as the claim of any Appellant or any Group Member depends on establishing inflation in the CBA Shares: No.

In relation to (d): Does not arise because of the answers to (a) and (c).

In relation to (e): There should be a declaration of contravention as set out in the orders of the Full Court.

ORDERS

THE COURT DECLARES THAT:

1.    The respondent (CBA) contravened Listing Rule 3.1 of the Australian Securities Exchange (ASX) Listing Rules and s 674 of the Corporations Act 2001 (Cth) by failing to disclose, on or about 24 April 2017:

(a)    that from around November 2012 to 8 September 2015:

(i)    CBA had failed to give threshold transaction reports (TTRs) on time for approximately 53,506 cash transactions of $10,000 or more processed through Intelligent Deposit Machines (IDMs) following the introduction of IDMs (September 2015 Late TTRs);

(ii)    the September 2015 Late TTRs represented between approximately 80% and 95% of threshold transactions that occurred through CBA’s IDMs during the period from November 2012 to September 2015;

(iii)    the September 2015 Late TTRs had a total value of approximately $624.7 million dollars; and

(iv)    the September 2015 Late TTRs had not been lodged, at least in part, because of a systems error which occurred in or around November 2012; and

(b)    that from around 8 September 2015 or shortly thereafter, CBA was aware (within the meaning of ASX Listing Rule 19.12) that from at least 20 October 2012 to 8 September 2015, CBA failed to conduct account level monitoring with respect to 778,370 accounts.

THE COURT ORDERS THAT:

2.    The appeal be allowed in part.

3.    The cross-appeal be dismissed.

4.    Paragraph 1 of the orders made by the primary judge on 28 May 2024 in proceeding NSD 1158 of 2018 (Baron proceeding) be set aside.

5.    The individual claims of the appellants be dismissed.

6.    Paragraph 7 of the orders made by the primary judge on 28 May 2024 in the Baron proceeding be set aside and:

(a)    in lieu thereof, the common questions be amended and be answered in the form set out in the Annexure to these orders; and

(b)    pursuant to s 33ZB of the Federal Court of Australia Act 1976 (Cth), those answers be binding on the group members in this proceeding, save for those group members who have opted out pursuant to s 33J.

7.    The balance of the Baron proceeding be remitted to a single judge for case management, hearing and determination (subject to any orders that may be made under ss 33N, 33Q, 33R or 33S of the Federal Court of Australia Act).

8.    Each party bear its or their own costs of the appeal and the cross-appeal.

9.    Paragraphs 1 and 2 of the orders made by the primary judge on 20 September 2024 in the Baron proceeding be set aside and in lieu thereof it be ordered that the applicants in the Baron proceeding and proceeding VID 1085 of 2017 (Zonia proceeding) (together, the proceedings) be jointly and severally liable to pay 80 per cent of the respondent’s costs of and incidental to the proceedings on a party and party basis, except for the costs for which the respondent is liable pursuant to paragraph 6 of the orders made on 10 July 2019 in the Zonia proceeding, and paragraph 5 of the orders made on 10 July 2019 in the Baron proceeding, such costs to be assessed on a lump sum basis.

10.    There be liberty to apply if further procedural orders are necessary to facilitate the determination of the lump sum costs referred to in paragraph 9.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Annexure

Answers to Common Questions

Defined terms used below have the meaning ascribed to them in the Third Further Amended Statement of Claim (filed in the Zonia proceeding) and the Further Amended Statement of Claim (filed in the Baron proceeding), together the Harmonised Statement of Claim (HSOC).

Markup shows changes from the questions and answers annexed to the orders of the primary judge made on 28 May 2024.

1.    Did the following information exist at any point of time in the period 16 June 2014 to 3 August 2017 (Relevant Period):

(a)    the June 2014 Late TTR Information;

(b)    the August 2015 Late TTR Information;

(c)    the September 2015 Late TTR Information;

(d)    the June 2014 IDM ML/TF Risk Assessment Non-Compliance Information;

(e)    the August 2015 IDM ML/TF Risk Assessment Non-Compliance Information;

(f)    the June 2014 Account Monitoring Failure Information;

(g)    the August 2015 Account Monitoring Failure Information;

(h)    the September 2015 Account Monitoring Failure Information; and

(i)    the Potential Penalty Information.

The August 2015 IDM ML/TF Risk Assessment Non-Compliance Information existed from 26 October 2015 onwards.

The September 2015 Late TTR Information existed from 22 January 2016 onwards.

The September 2015 Account Monitoring Failure Information existed from 13 April 2017 onwards.

By 24 April 2017, the Potential Penalty Information existed.

Otherwise, no.

2.    Was CBA aware (within the meaning of ASX Listing Rule 19.12) of the information referred to in paragraphs 1(a) to 1(i) as at each of the dates pleaded in the HSOC?

No, except to the extent that:

(a)    as at 26 October 2015, CBA was aware of the August 2015 IDM ML/TF Risk Assessment Non-Compliance Information;

(b)    as at 24 April 2017, CBA was aware of the September 2015 Late TTR Information;

(c)    as at 24 April 2017, CBA was aware of the September 2015 Account Monitoring Failure Information;

(d)    as at 24 April 2017, CBA was aware of the Potential Penalty Information (to the extent that it was dependent on awareness of the September 2015 Late TTR Information and the September 2015 Account Monitoring Failure Information).

3.    Was the information referred to in paragraphs 1(a) to 1(i), and/or any combination of two or more items of that information:

(a)    material information;

(b)    not generally available,

within the meaning of ASX Listing Rule 3.1 or Chapter 6CA of the Corporations Act?

As at 24 April 2017, the September 2015 Late TTR Information and the September 2015 Account Monitoring Failure Information were each The information referred to in paragraphs 1(a) to (i) and/or any combination of two or more items of that information was not items of material information and were was not generally available within the meaning of ASX Listing Rule 3.1 or Chapter 6CA of the Corporations Act.

Otherwise, no.

4.    Was some or all of the information referred to in paragraphs 1(a) to 1(i) above subject to the exceptions identified in Listing Rule 3.1A?

No.

5.    Did the Respondent contravene section 674 of the Corporations Act by failing to disclose some or all of the information referred to in paragraphs 1(a) to 1(i) above in accordance with Chapter 6CA of the Corporations Act, and if so, at what point in time did the disclosure obligation arise?

The Respondent contravened s 674 of the Corporations Act by not disclosing the September 2015 Late TTR Information and the September 2015 Account Monitoring Failure Information on or about 24 April 2017. Otherwise, no.

No.

6.    Did the Respondent make the Compliance Representations and/or the Continuous Disclosure Representations at any point in time during the Relevant Period, and if so at what point in time?

No.

7.    Did the Respondent contravene section 1041H of the Corporations Act or section 12DA(1) of the ASIC Act or section 18 of the Australian Consumer Law by making, maintaining and/or failing to qualify:

(a)    the Compliance Representations; and/or

(b)    the Continuous Disclosure Representation?

No.

8.    Were there any defects in the Cleansing Notice issued by the Respondent on 12 August 2015 and if so, what was the nature of those defects?

No.

9.    Did the Respondent contravene s 708AA(10) of the Corporations Act by issuing the Cleansing Notice on 12 August 2015 and not, within a reasonable time after becoming aware of any defects in the Cleansing Notice, giving the ASX a notice that set out the information necessary to correct the defects?

No.

10.    Whether, if established, one or more of the alleged Market Contraventions had the effect that the price of acquisition for CBA Shares was greater than their true value and/or the market price and/or the Entitlement Offer Price that would have prevailed but for the Market Contraventions (“inflation”) and if so or in any event:

(a)    What was the amount of the inflation in the CBA Shares during some or all of the Relevant Period

(b)    Which of the Market Contraventions caused the price of CBA Shares to be inflated

(c)    whether statutory compensation is recoverable by the Applicants and some or all of the Group Members;

(d)    the correct measure of the statutory compensation for which the Respondent may be liable to the Applicants and some or all of the Group Members; and

(e)    whether the Court should make the declarations sought in the Further Amended Originating Applications.

The Applicants did not establish that one or more of the alleged Market Contraventions had the effect that the price of acquisition for CBA Shares was greater than their true value and/or the market price and/or the Entitlement Offer Price that would have prevailed but for the Market Contraventions.

In relation to (a): The Appellants have not established any amount of inflation in the CBA Shares during any part of the Relevant Period.

In relation to (b): Does not arise because of the answer to (a).

In relation to (c): Insofar as the claim of any Appellant or any Group Member depends on establishing inflation in the CBA Shares: No.

In relation to (d): Does not arise because of the answers to (a) and (c).

In relation to (e): There should be a declaration of contravention as set out in the orders of the Full Court.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    On 7 May 2025, the Full Court gave judgment in these appeals: Zonia Holdings Pty Ltd v Commonwealth Bank of Australia Limited [2025] FCAFC 63 (the May 2025 Reasons). At that stage, orders were made for the parties to provide any agreed minute of proposed orders to give effect to the Full Court’s reasons and in relation to costs or, if they could not agree, for each party to provide the party’s proposed orders together with a short submission. The parties were unable to agree proposed orders and therefore filed competing proposed orders and submissions in support of those orders (including responding submissions). The appellants also filed an affidavit of Ronald Koo, a principal lawyer of Maurice Blackburn Pty Ltd, the solicitors for Zonia, dated 28 May 2025. The appellants sought a hearing on the outstanding issues. The further hearing took place on 28 August 2025. These reasons deal with the issues as to the appropriate form of orders to give effect to the Full Court’s reasons and the issue of costs. These reasons should be read together with the May 2025 Reasons. We adopt the definitions used in the May 2025 Reasons.

2    The issues between the parties can be summarised as follows:

(a)    whether declarations should be made;

(b)    the answer to common question 10;

(c)    whether there should be a remittal of any part of the proceeding; and

(d)    costs.

3    We will consider each issue in turn.

Declarations

4    The appellants submit that it is appropriate for the Full Court’s conclusions that the Bank contravened Listing Rule 3.1 and s 674 of the Corporations Act 2001 (Cth) in relation to two forms of pleaded information to be reflected in declarations. The Bank submits that declarations are unnecessary and inappropriate in circumstances where the appellants failed to establish that they suffered any loss by reason of the contraventions. Therefore, the Bank submits, declarations would be of no real utility to group members.

5    There are two central difficulties with the Bank’s contentions. First, in circumstances where the Court has resolved a central and contested issue regarding contravention of a statutory provision, it may be appropriate for the Court’s conclusion to be formally recorded in a declaration notwithstanding that the conclusion does not otherwise have practical consequences for the applicant: see, eg, Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89 at 100-101 per Sheppard J (Foster J agreeing at 106); see also at 107 per Hill J. Secondly, although the Full Court’s conclusions that the Bank contravened Listing Rule 3.1 and s 674 do not have practical implications for the appellants and group members whose claims depend on establishing inflation in the CBA share price, the conclusions that the Bank contravened those provisions may have practical consequences for “no transaction” group members (see further below).

6    In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; 254 FCR 68, the Full Court (Dowsett, Greenwood and Wigney JJ) said at [92]:

The Court has a wide discretionary power to make declarations under s 21 of the Federal Court of Australia Act 1976: Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 (Forster) at 437-438 (per Gibbs J, citing Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448); Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89 at 99 (per Sheppard J). Before making a declaration, the Court should be satisfied that the question is real, not hypothetical or theoretical, that the applicant has a real interest in raising the issue, and that there is a proper contradictor: Forster at 437-438.

7    The above passage appears in a case that was a regulatory proceeding. While class actions are not regulatory proceedings, the class action regime not only facilitates access to justice to those who suffer loss by reason of conduct that contravenes statutory norms, but also assists in the enforcement of the substantive law, including by deterring contravening conduct.

8    In the present case, the prerequisites for the making of a declaration referred to in the above passage are satisfied: the question whether the Bank contravened Listing Rule 3.1 and s 674 was real, not hypothetical or theoretical; the appellants had a real interest in raising the issue; and there was a proper contradictor.

9    It is no small thing that Australia’s largest bank contravened the continuous disclosure provisions of the Corporations Act. We consider that a declaration is appropriate here. A declaration vindicates the appellants’ case on this important point and serves the purpose of promoting compliance with the continuous disclosure regime.

10    The second difficulty we have identified in the Bank’s argument also supports the making of a declaration in this case. As we detail further below, it has emerged that the appellants anticipate that some group members may yet wish to claim damages on an individual “no transaction” basis. The declaration we will make also has utility in that it will serve as part of the foundation for any such claims as may be advanced.

11    The appellants’ proposed form of declaration refers to the Bank failing to disclose the “September 2015 Late TTR Information” and the “September 2015 Account Monitoring Failure Information”, being expressions that were defined in the appellants’ pleadings at first instance (reproduced at [128] and [129] of the May 2025 Reasons). We consider it preferable to set out the text of those definitions in the declaration so that it provides a self-contained description of the contravening conduct. Accordingly, we will make a declaration in the following terms in each appeal proceeding:

THE COURT DECLARES THAT:

1.    The respondent (CBA) contravened Listing Rule 3.1 of the Australian Securities Exchange (ASX) Listing Rules and s 674 of the Corporations Act 2001 (Cth) by failing to disclose, on or about 24 April 2017:

(a)    that from around November 2012 to 8 September 2015:

(i)    CBA had failed to give threshold transaction reports (TTRs) on time for approximately 53,506 cash transactions of $10,000 or more processed through Intelligent Deposit Machines (IDMs) following the introduction of IDMs (September 2015 Late TTRs);

(ii)    the September 2015 Late TTRs represented between approximately 80% and 95% of threshold transactions that occurred through CBA’s IDMs during the period from November 2012 to September 2015;

(iii)    the September 2015 Late TTRs had a total value of approximately $624.7 million dollars; and

(iv)    the September 2015 Late TTRs had not been lodged, at least in part, because of a systems error which occurred in or around November 2012; and

(b)    that from around 8 September 2015 or shortly thereafter, CBA was aware (within the meaning of ASX Listing Rule 19.12) that from at least 20 October 2012 to 8 September 2015, CBA failed to conduct account level monitoring with respect to 778,370 accounts.

Common question 10

12    The primary judge made orders dated 28 May 2024 in each proceeding answering common questions. It is common ground that the answers to questions 3 and 5 need to be amended to reflect the conclusions reached by the Full Court. Although each side initially put forward slightly different wording for those answers, in their responding submissions the appellants said that they were content with the Bank’s proposed wording. Accordingly, we will make orders amending the answers to questions 3 and 5, adopting the Bank’s proposed wording for those answers.

13    The parties disagree, however, as to whether the answer to question 10 needs to be amended and, if so, the appropriate wording of the answer. Question 10 and the primary judge’s answer to that question are as follows:

Whether, if established, one or more of the alleged Market Contraventions had the effect that the price of acquisition for CBA Shares was greater than their true value and/or the market price and/or the Entitlement Offer Price that would have prevailed but for the Market Contraventions and if so:

(a)    What was the amount of the inflation in the CBA Shares during some or all of the Relevant Period

(b)    Which of the Market Contraventions caused the price of CBA Shares to be inflated

(c)    whether statutory compensation is recoverable by the Applicants and some or all of the Group Members;

(d)    the correct measure of the statutory compensation for which the Respondent may be liable to the Applicants and some or all of the Group Members; and

(e)    whether the Court should make the declarations sought in the Further Amended Originating Applications.

The Applicants did not establish that one or more of the alleged Market Contraventions had the effect that the price of acquisition for CBA Shares was greater than their true value and/or the market price and/or the Entitlement Offer Price that would have prevailed but for the Market Contraventions.

14    The appellants submit that the primary judge’s answer should be deleted and replaced with:

Not answered for 10(a) to (d). As to 10(e), the Court ought to make the declarations in the form of Order 3.

15    The Bank submits that the primary judge’s answer should not be disturbed. The Bank submits that the effect of the Full Court’s conclusion that the appellants had not established that they suffered any loss was that they had not established that “the price of acquisition for CBA shares was greater than their true value and/or the market price and/or the Entitlement Offer Price that would have prevailed but for the Market Contraventions” as referred to in the chapeaux to question 10.

16    In our opinion, neither party’s position accurately reflects the conclusions reached in the May 2025 Reasons. In those reasons, we concluded that the appellants’ case on quantification of loss failed and, in those circumstances, it was unnecessary to express a conclusion on causation: see [582], [619]. We consider that the chapeaux to question 10 relates, at least in part, to the issue of causation. In these circumstances, to leave the primary judge’s answer intact (as proposed by the Bank) might suggest that we expressed a conclusion on causation, when we did not.

17    There are also difficulties with the appellants’ proposed approach. In circumstances where the issue of quantification of loss (in relation to inflation in the CBA share price) was fully argued and decided and is a common issue among all group members whose claims depend on establishing price inflation, it is appropriate that the conclusions of the Full Court be expressed in the answers to the common questions and be binding on all group members pursuant to s 33ZB of the Federal Court of Australia Act 1976 (Cth).

18    At the hearing on 28 August 2025, senior counsel appearing for the appellants at that hearing suggested that it might be open to group members to re-agitate the issue of whether there was inflation in the price of CBA shares. The suggestion seemed to be that, because the Full Court had not decided the causation issue, it might be open to group members to re-agitate the question of causation and thereby create an avenue for re-agitating the price inflation issue. We consider that suggestion to be untenable. In circumstances where the price inflation issue was fully argued and decided, it would be inimical to the objects of the representative proceedings regime for group members to have, in effect, a ‘second bite at the cherry’. In the face of this suggestion, we consider it important that the answers to common questions reflect the Full Court’s conclusion that the appellants failed to make out their case on quantification of loss on a group-wide basis. At trial, and on appeal, the only means adopted by the appellants to establish loss on a group-wide basis was by this contention that the share price was inflated.

19    With those considerations in mind, we consider it appropriate to make an adjustment to the wording of question 10 (as marked up below) and for the amended question to be answered as follows:

Whether, if established, one or more of the alleged Market Contraventions had the effect that the price of acquisition for CBA Shares was greater than their true value and/or the market price and/or the Entitlement Offer Price that would have prevailed but for the Market Contraventions (“inflation”) and if so or in any event:

(a)    What was the amount of the inflation in the CBA Shares during some or all of the Relevant Period

(b)    Which of the Market Contraventions caused the price of CBA Shares to be inflated

(c)    whether statutory compensation is recoverable by the Applicants and some or all of the Group Members;

(d)    the correct measure of the statutory compensation for which the Respondent may be liable to the Applicants and some or all of the Group Members; and

(e)    whether the Court should make the declarations sought in the Further Amended Originating Applications.

The Applicants did not establish that one or more of the alleged Market Contraventions had the effect that the price of acquisition for CBA Shares was greater than their true value and/or the market price and/or the Entitlement Offer Price that would have prevailed but for the Market Contraventions.

In relation to (a): The Appellants have not established any amount of inflation in the CBA Shares during any part of the Relevant Period.

In relation to (b): Does not arise because of the answer to (a).

In relation to (c): Insofar as the claim of any Appellant or any Group Member depends on establishing inflation in the CBA Shares: No.

In relation to (d): Does not arise because of the answers to (a) and (c).

In relation to (e): There should be a declaration of contravention as set out in the orders of the Full Court.

20    By way of explanation, we consider it appropriate to define the three types of price effect referred to in the chapeaux as “inflation” to make clear that that is what is referred to in paragraph (a) of the question and in the answers to questions (a) and (c). We propose to insert “or in any event” at the end of the chapeaux to enable paragraphs (a) to (e) to be answered even if the proposition in the chapeaux as to causation is not answered affirmatively. The answer we propose to question (a) reflects the conclusion we reached on the quantification of loss issue in the May 2025 Reasons at [581], [608], [617], [618]. The answer we propose to question (c) follows from the answer to (a). That is to say, insofar as the claim of any appellant or any group member depends on establishing inflation in the CBA shares, statutory compensation is not recoverable. In our view, this was determined as a common issue and the answer should bind all group members.

21    In relation to paragraph (e), the answer set out above reflects the conclusion we have reached earlier in these reasons regarding declarations.

Remittal

22    It is common ground between the parties that the Full Court should make orders dismissing the individual claims of the appellants. We will make such an order in each appeal proceeding.

23    In each proceeding below, the primary judge made an order that the originating application be dismissed (paragraph 1 of the orders dated 28 May 2024 in each proceeding below).

24    The Bank contends that that order should not be disturbed. The appellants contend that the order should be set aside and that the balance of each proceeding should be remitted to a single judge for case management.

25    In the May 2025 Reasons, we stated at [13] that it followed from our conclusions on the issues raised by the appeals that the appeals were to be allowed in part (insofar as the answers to some of the common questions needed to be changed to reflect the conclusions we had reached), “but the primary judge’s orders dismissing the proceedings at first instance [were to] remain undisturbed”. That statement was made in a context where neither party’s appeal submissions referred to the fact that, in paragraph 106(a) of the appellants’ pleadings at first instance, reference was made to an alternative basis upon which some group members may be able to claim to have suffered loss or damage by reason of the alleged contraventions, namely that, but for the alleged contraventions, some group members would not have acquired interests in CBA shares. Our statement at [13] was made without taking into account that category of potential claimants. Accordingly, we do not consider that statement to be determinative of the issue presently under consideration.

26    The Bank contends that, notwithstanding the possibility of claims being brought on a “no transaction” basis, the order dismissing the originating application in each proceeding should remain in place. The Bank submits that, if there are any group members who wish to bring a “no transaction” claim, they can do so in separate proceedings. The Bank notes that the proceedings below were commenced promptly and there has been a suspension of the limitation period during the course of the proceedings (see s 33ZE of the Federal Court of Australia Act). Accordingly, there remains a reasonable time for any such group members to commence their own proceedings. The Bank notes that the only issues to be determined in respect of any such claims are individual issues, and therefore it is appropriate that such claims be brought in separate proceedings. The Bank also submits that the possibility of “no transaction” claims is more theoretical than real, noting that, in the months that have elapsed since the Full Court’s judgment, the appellants have not put forward one group member who says that they wish to pursue such a claim.

27    The appellants oppose that course and point to the fragmentation that would occur if separate proceedings were commenced in different courts about the same subject matter.

28    In our view, the preferable course is for the balance of each proceeding to be remitted to a single judge of this Court for case management, hearing and determination (subject to any orders that may be made pursuant to ss 33N, 33Q, 33R or 33S of the Federal Court of Australia Act). In circumstances where there are competing views as to whether any further claims should be brought within the current proceeding or in new proceedings, it is not appropriate for this issue to be determined by a Full Court; it is preferable that it be determined by a single judge after hearing from the parties on the issue.

29    For the avoidance of doubt, when we refer to the “balance of the proceeding” being remitted, this does not include any claims that depend on establishing inflation in the price of CBA shares. As discussed above, and reflected in our answer to question 10(c), we do not consider it open to group members to pursue any such claims.

30    We note for completeness that, although the personal claims of the appellants are to be dismissed, they will still have standing to continue the proceedings below under s 33D of the Federal Court of Australia Act. However, it may be expected that, following the remittal, if any further claims are to be pursued, a group member with a personal claim will be substituted as applicant.

Costs

31    The primary judge made orders on 20 September 2024 in each proceeding to the effect that the applicants pay the Bank’s costs, subject to two interlocutory costs orders that had been made in the applicants’ favour.

32    The Bank submits that the appellants should pay the Bank’s costs of the appeals and the cross-appeals, on a party and party basis, and that the costs orders made by the primary judge should remain undisturbed. The Bank submits that it enjoyed real practical success. The Bank submits that: the usual rule – that costs follow the event – should apply; the appellants have failed to establish that they suffered any loss or damage; the contraventions have no real consequence for the appellants and group members; and no departure from the usual rule is justified.

33    The Bank further submits that the degree of the appellants’ success on appeal represents a sliver of the case the appellants pursued against the Bank; the findings made related to contraventions between 24 April 2017 and 3 August 2017; that covers about 8.8% of the appellants’ original period of alleged contravention (16 June 2014 to 3 August 2017) and about 14.5% of the confined period on appeal (8 September 2015 to 3 August 2017). The Bank submits that no contraventions were found in respect of two of the categories of pleaded information; and, on appeal, the appellants abandoned two-thirds of their causes of action at first instance.

34    The Bank also submits that apportionment should not be ordered where, as here, it is likely to be difficult, if not impossible, to allocate items of costs between the different issues.

35    In relation to the cross-appeals, the Bank submits that those costs should be treated compendiously with the costs of the broader appeal; the cross-appeal raised a single, straightforward ground; the cross-appeal arose only if the appellants successfully demonstrated that the pleaded information should have been disclosed – that is, the Bank brought the cross-appeal only to protect its position in the event that the appellants’ appeal was successful.

36    The appellants submit that each party should bear its own costs of the appeals, and that the costs orders made by the primary judge should be set aside and in lieu thereof it be ordered that each party bear its own costs of the proceedings below. The appellants submit that they have enjoyed a significant measure of success, as grounds 5, 6(b) and (c), 9, 10 and 17 were upheld. They also submit that the September 2015 Late TTR Information, on which the appellants were successful, was the lynchpin of the appellants’ case. The appellants submit that the majority of the time spent on appeal was directed toward, or at least influenced, that outcome, and that the same was true at trial. They also submit that the Full Court’s findings and declarations will have significant and positive ramifications for group members in pursuit of their individual claims, and the final outcome of those claims will not be known for some time.

37    The appellants submit that, having regard to the mixed success of the parties, the impracticability of the Court splitting and assessing costs on an issues basis, and the presently unquantifiable benefits to the group members of the findings and declarations of contravention, the most appropriate course is to order that each party bear its own costs of the appeals, the cross-appeals and the proceedings below.

38    There is no real issue as to the applicable principles, which were summarised in Sandvik Intellectual Property AB v Quarry Mining & Construction Equipment Pty Ltd (No 2) [2017] FCAFC 158 at [9]-[11] per Greenwood, Rares and Moshinsky JJ:

9    Section 43(3)(e) of the Federal Court of Australia Act 1976 (Cth) provides that an award of costs may be made in favour of, or against, a party whether or not that party is successful in the proceeding. The approach usually taken is that costs follow the outcome of an appeal: see Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) (2015) 327 ALR 192 at [6] per French CJ, Kiefel, Nettle and Gordon JJ; see also Les Laboratoires Servier v Apotex Pty Ltd (2016) 247 FCR 61 at [303]; Oshlack v Richmond River Council (1998) 193 CLR 72 at [66]-[68].

10    In Queensland North Australia Pty Ltd v Takeovers Panel (No 2) (2015) 236 FCR 370, Dowsett, Middleton and Gilmour JJ, after referring to Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 and State of Victoria v Sportsbet Pty Ltd (No 2) [2012] FCAFC 174, said at [11] that these decisions treat the success or failure of the relevant party as being the starting point in consideration of the question of costs, but contemplate at least three distinct categories of situation in which a successful party might be deprived of costs, or even ordered to pay the costs of the other side. These were identified as follows:

One such category is where the applicant has been only partially successful in that it has not obtained all of the relief sought. The second category is where a party has succeeded in obtaining the relief sought, but has not succeeded on all bases (factual or legal) upon which it sought such relief. Of course, it is possible that a particular outcome will fall into both categories. A third category involves consideration of the successful party’s conduct of the case.

11    After referring to the decision of Finkelstein and Gordon JJ in Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107, Dowsett, Middleton and Gilmour JJ in Queensland North Australia then said at [18]:

[Section 43 of the Federal Court of Australia Act] does not mention costs following the event. In Ruddock, Bowen Investments and Sportsbet, the Court proceeded on the basis that ordinarily, the successful party may reasonably expect to receive its costs, whether that outcome be described as costs following the “event” or otherwise. The question of costs is within the Court’s discretion. As we have said, relevant factors include the extent of a party’s success, the extent of its success or failure on individual issues and its conduct of the proceedings.

39    In relation to the appeals and cross-appeals, we consider that the starting point is that the Bank was successful in defeating the claims of the appellants and group members whose claims depend on establishing inflation in the CBA share price. However, it is also the case that the appellants were successful in establishing that the Bank contravened Listing Rule 3.1 and s 674 of the Corporations Act and we propose to make declarations to that effect. Thus, although the Bank was successful overall, the appellants achieved success on certain issues. The appeals and cross-appeals occupied four hearing days. Our impression is that roughly half of that time was occupied with issues on which the appellants were successful, namely the threshold point issue and the materiality of the September 2015 Late TTR Information and the September 2015 Account Monitoring Failure Information (which were the more significant items of pleaded information). The appellants were also successful on the Rule 3.1A issue, but that occupied relatively little time. In the circumstances of this case, we consider it appropriate to adopt an issues-based approach to the question of costs, given the mixed success of the parties on substantial issues that occupied a good deal of time. We consider that each side achieved a significant measure of success in relation to the issues canvassed on the appeals and cross-appeals, and that the appropriate order is that each party bear its own costs of the appeals and the cross-appeals. In reaching this conclusion, we have not taken into account the possibility that some group members may be able to bring claims on a “no transaction” basis. At this stage, it is unclear whether any such claims will in fact be brought, and the prospect of such claims being brought was not adverted to at all in the appeals. We therefore do not consider it appropriate to take the possibility of such claims into account.

40    In relation to the costs of the proceedings at first instance, we consider it necessary for the costs orders to be revisited in light of the conclusions reached by the Full Court. Again, the starting point is that the Bank was successful in defeating the claims of the appellants and of group members whose claims depend on establishing inflation in the CBA share price. However, again, it is also the case that the appellants were successful in establishing that the Bank contravened Listing Rule 3.1 and s 674 of the Corporations Act and we propose to make declarations to that effect. Thus, although the Bank was successful overall, the appellants achieved success on certain issues. An important difference between the appeals and the trial is that the appellants ran a much broader case at trial; they abandoned a large part of that case for the purposes of the appeals. In these circumstances, the appellants’ success in relation to the issues agitated at trial (including as determined on appeal) was proportionately much more limited than their success on appeal. While we consider the appropriate starting point to be that the Bank was largely successful and should therefore be entitled to a large part of its costs of the proceedings at first instance, we consider that some allowance should be made for the appellants’ success in establishing that the Bank contravened Listing Rule 3.1 and s 674 of the Corporations Act in relation to two of the items of pleaded information (which were the more significant items). Having regard to the primary judge’s judgment as a guide to the relative significance of, and work associated with, the various issues agitated at trial, we consider that an appropriate allowance is reflected in an order that the appellants pay 80 per cent of the Bank’s costs of the proceedings at first instance (subject to the interlocutory costs orders that were exceptions to the primary judge’s costs orders, which should remain as exceptions). Again, in reaching this conclusion, and for the reasons given above, we have not taken into account the possibility that some group members may be able to bring claims on a “no transaction” basis.

Conclusion

41    We will therefore make declarations and orders as set out above.

Associate:

Dated:    4 September 2025